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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Sep-10-2012 2:55 pm
Case Number: CGC-10-500934
Filing Date: Sep-10-2012 2:53
Filed by:
Juke Box: 001 Image: 03757104
DECLARATION
CATHAY BANK, A CALIFORNIA BANKING CORPORATION VS. RAYMOND
XIANG ZHANG et al
001003757104
Instructions:
Please place this sheet on top of the document to be scanned.
ddChijeh Hu (SBN 241271)
CJH & Associates
1440 Broadway, Suite 1000
Oakland, CA 94612
Telephone: (510) 832-1686
Fax: (510) 251-1155
Attorney for Defendants/Cross
Complainants,
RAYMOND ZHANG, et al.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
CATHAY BANK, a California banking CASE NO: CGC- 10 - 500934
Corporation,
DECLARATION OF MAUREEN MCCUAIG
Plaintiff, IN SUPPORT OF DEFENDANTS’ MOTION
TO QUASH DEPOSITION SUBPOENAS FOR
v. CONSUMER RECORDS OF DEFENDANTS,
AND REQUEST FOR MONETARY
RAYMOND XIANG KAI ZHANG, et al... | SANCTIONS
Defendants. Date: October 12, 2012
Time: 9:30am
Dept.: 302
I, Maureen McCuaig, declare as follows:
1. I am an attorney duly licensed to practice law before all the courts in the State of
California and an associate at CJH & Associates, P.C., counsel of record for Defendants in the
above-captioned case. I have recently been assigned to the day-to-day handling of this matter for
my firm. As such, and pursuant to my firm’s custom and practices, I receive copies of all
pleadings, motions, notices and other documents pertaining to the instant action.
2. I have personal knowledge of the facts stated herein and if called upon I could
testify competently as to the matters stated herein.
-l-
DECLARATION OF MAUREEN MCCUAIG IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION
SUBPOENAS FOR CONSUMER RECORDS OF DEFENDANTS3. On or about August 23, 2012, Defendants and Cross-complainants Raymond
Zhang, Cindy Zhang, and Dong Ying Qui were served, through my office, with two notices for
subpoenas of business records, one to Custodian of Records Schinner Law Group and the other to
Quinn Chevalier. Copies of these notices are attached to this motion.
4, Our office objects to the attached subpoenas, on behalf of Defendants, on the
grounds that the overbroad categories of document requests seek material protected by attorney-
client privilege and the work-product doctrine, or otherwise irrelevant material, from former
counsel in the above-captioned matter.
5. I have made a good faith effort to resolve this issue with Plaintiff's counsel prior to
filing the present motion.
6. In August 24, 2012 and August 28, 2012 letters sent by me on behalf of Defendants
to Plaintiffs attorney, Hanna Raanan at Frandzel Robins Bloom & Csato, true and correct copies
of which are attached as Ex. A and Ex. B, I requested, on behalf of Defendants, that Plaintiff
withdraw the subpoenas on the grounds of attorney-client privilege and the work product doctrine.
7. In August 29, 2012 reply letters, true and correct copies of which are attached as
Ex. C and Ex. D, Ms. Raanan stated her intention to serve the subject subpoenas once the notice
period on the Notice to Consumer expires.
8. My August 30, 2012 email to Plaintiff's counsel, a true and correct copy of which
is attached as Ex. E , noted that Plaintiff completely failed to assert any waiver of privilege with
respect to Defendants Cindy Zhang or Don Ying Qui, and required that such requests for
documents relating to their legal representation be withdrawn.
9. In an August 30, 2012 response email, a true and correct copy of which is attached
as Ex. F, Plaintiff's counsel stated, “[w]e will amend the subpoenas to remove references to Cindy|
Zhang and Dong Ying Qui.” To date, Defendants have received no copies of any amended
subpoenas.
10. Our firm, on behalf of Defendants, requests that a monetary sanction be imposed
against Plaintiff Cathay Bank and its counsel Frandzel Robins Bloom & Csato in the sum of
-2-
DECLARATION OF MAUREEN MCCUAIG IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION
SUBPOENAS FOR CONSUMER RECORDS OF DEFENDANTS,$3,500, incurred as a result of the reasonable expenses and attorney fees itemized as follows: 2
hours of meet and confer, 4 hours to prepare the instant motion, 2 hours anticipated review of the
Plaintiff's opposition of the instant motion, 2 hours anticipated to reply to Plaintiffs opposition of|
the instant motion, 2 hours to prepare for hearing and 2 hours to attend a hearing on the instant
motion. In total, our firm anticipates billing 14 hours as a result of bringing the instant motion.
Our firm bills clients at $250 per hour. Accordingly, we request monetary sanctions in the amount]
of $3,500. An estimated ten percent of that sum, $350, is attributable to Plaintiff's failure to serve
amended subpoenas that removed references to Cindy Zhang and Dong Ying Qui, as promised.
I declare under penalty of perjury and under the laws of the State of California that the
foregoing is true and correct.
Executed this_[O day of September 2012 at Okla £ ; California.
by. lisa Le lx
MAUREEN MCCU.
3.
DECLARATION OF MAUREEN MCCUAIG IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION
SUBPOENAS FOR CONSUMER RECORDS OF DEFENDANTSExhibit A) CJH&Associates sores comer
August 24, 2012
VIA U.S. MAIL & EMAIL (hraanan@frandzel.com)
Ms. Hanna Raanan
Frandzel Robins Bloom & Csato, L.C.
6500 Wilshire Boulevard, Seventeenth Floor
Los Angeles, California 90048
Re: Cathay Bank v. Raymond Zhang, et al., Case No. CGC-10-500934
Meet and Confer re: Cathay’s Notice of Subpoena
Dear Hanna,
We are in receipt of your August 23, 2012 Notice of Deposition Subpoena for Production
of Business Records to the Custodian of Records Schinner Law Group. This letter serves
as my good faith attempt to informally resolve the issue of your subpoena for documents
from our clients’ former counsel in this case, Schinner Law Group, before proceeding
with the appropriate motions, including sanctions.
Both the attorney-client privilege and work-product doctrine are absolute in California
civil cases. Your request for the production of documents blatantly and shamelessly
seeks protected attorney-client and attorney work-product material, requesting “all of the
documents described below, whether or not they came into your possession, custody or
control before, during or after the period in which you had a formal attorney-client
relationship with any one or more of Raymond Zhang, Cindy Zhang or Don Ying Qui.”
Your requests for such documents can only be meant to harass our clients and undermine
their privilege with counsel.
We require that you immediately withdraw this subpoena request. Please confirm in
writing that you have done so no later than 5:00 p.m. on Monday, August 27, 2012.
Sincerely,
CJH & Associates, P.C.
mmccuaig@cjhapc.com
Attorneys for Defendant and Cross-Complainant
1440 Broadway, Suite 1000, Oakland, CA 94612 | P: 510.832.1686 | F: 510.251.1155 | E: general@cjhulaw.com | W: www.cjhapc.comExhibit BAugust 28, 2012
VIA U.S. MAIL & EMAIL (hraanan@frandzel.com)
Ms. Hanna Raanan
Frandzel Robins Bloom & Csato, L.C.
6500 Wilshire Boulevard, Seventeenth Floor
Los Angeles, California 90048
Re: Cathay Bank v. Raymond Zhang, et al., Case No, CGC-10-500934
Meet and Confer re: Cathay’s Notice of Subpoena
Dear Hanna,
We are in receipt of your August 23, 2012 Notice of Deposition Subpoena for Production
of Business Records to Quinn Chevalier. This letter serves as my good faith attempt to
informally resolve the issue of your subpoena for documents from our clients’ former
counsel in this case, Quinn Chevalier, before proceeding with the appropriate motions,
including sanctions.
Both the attorney-client privilege and work-product doctrine are absolute in California
civil cases. Your request for the production of documents blatantly and shamelessly
seeks protected attorney-client and attorney work-product material, requesting “all of the
documents described below, whether or not they came into your possession, custody or
control before, during or after the period in which you had a formal attorney-client
relationship with any one or more of Raymond Zhang, Cindy Zhang or Don Ying Qui.”
Your requests for such documents can only be meant to harass our clients and undermine
their privilege with counsel.
We require that you immediately withdraw this subpoena request. Please confirm in
writing that you have done so no later than 5:00 p.m. on Wednesday, August 29, 2012.
wo
y
Maureen McCuaig
CJH & Associates, P.C.
mmecuaig@cjhape.com
Attorneys for Defendant and Cross-Complainant
1440 Broadway, Suite 1000, Oakland, CA 94612 | P: 510.832.1686 | F: 510.251.1185 | E: general@cjhulaw.com | W: www.cjhapc.comExhibit CFRANDZEL ROBINS BLOOM & CSATO, L.C.
LAWYERS
WWW. FRANDZEL.COM
LQS ANGELES OFFICE SAN JOSE OFFICE
6500 WILSHIRE BOULEVARD 225 W. SANTA CLARA STREET
SEVENTEENTH FLOOR SUITE 1500
LOS ANGELES, CALIFORNIA 90048-4920 SAN JOSE, CALIFORNIA 05113
TELEPHONE (323) 852-1000 TELEPHONE (408) 457-3606
FACSIMILE (923) 651-2577
Direct DiaL: (323) 658-9745 Our Fite # 023000-0790
E-MAIL: HRAANAN@FRANDZEL.COM REPLY To Los ANGELES
August 29, 2012
VIA E-MAIL ON AUGUST 29, 2012
FACSIMILE AND U.S. MAIL ON AUGUST 30, 2012
Maureen McCuaig, Esq.
CJH & Associates, P.C.
1440 Broadway, Suite 1000
Oakland, CA 94612
Facsimile: (510) 251-1155
Email: mmeuaig@cjhulaw.com
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
Dear Maureen:
lam in receipt of your August 24, 2012 letter regarding “Notice of Deposition Subpoena
for Production of Business Records to the Custodian of Records Schinner Law Group." First,
just to be clear, we served your office with the Notice to Consumer regarding our Subpoena for
Production of Business Records directed at the Custodian of Records of Schinner Law Group.
Your clients' rights regarding that subpoena, which has not been served on the Custodian of
Records of Schinner Law Group, are set forth in the Notice to Consumer.
With regards to your statement regarding attorney-client privilege and work-product
doctrine, these privileges are absolute, unless they are waived. We contend that Raymond Zhang
and his prior attorneys waived both the attorney-client privilege by answering specific questions
regarding conversations he had with his attorneys and the content of those conversations during
his deposition on April 15, 2011. Generally, a privilege for confidential communications is
waived by the holder's voluntary discldsure, or consent to disclosure of a significant part of the
communication. Evidence Code 912(&). A "significant part" means disclosure of enough
substantive information as to reveal the specific content of the alleged confidential
communication. Southern Calif. Gas Co. v. Public Util. Comm'n (1990) 50 Cal.3d 31, 46°
Mitchell v. Sup.Ct. (Shell Oil Co.) (1984) 37 Cal.3d 591, 601-602; Julrik Productions, Inc. v.
Chester (1974) 38 Cal.App.3d 807, 811 [attorney client privilege was waived as to a letter
written by client to Attorney where the client testified on cross-examination as to the existence
and content of the letter].
1064070.11 .
FRANDZEL ROBINS BLOOM
& CsaTo, L.c.
Maureen McCuaig, Esq.
August 29, 2012
Page 2
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
Specifically, at Raymond Zhang's April 15, 2011 deposition, he was asked a series of
questions regarding conversations he had with his attorneys Michael Schinner and Quinn
Chevalier of the Schinner Law Group. Mr. Zhang answered the questions and no objection was
made on the grounds of attorney-client privilege. I have attached excerpts of his deposition
which contain the waivers to this letter. As an example, Mr. Zhang was asked the following:
Mr. Russak: Okay. So you had a meeting with Mr. Schinner and
Mr. Chevalier, and you discussed the facts of your case about a
week before the TRO hearing; correct?
Raymond Zhang: Yes.
Q: What did you tell them about the deed of trust on the Third
Street property?
A: I said I did not know that that was there.
Q: Did you tell them that you thought you had been tricked into
signing it?
A: Yes.
Raymond Zhang Deposition ("Zhang Depo") at 115:7-16. This is only one example of several in
which Mr. Zhang was asked about specific conversations with his former attorneys, the Schinner
Law Group, including how they had reviewed and determined the information to be included in
his declarations and how they communicated regarding the facts of the case. As a result, Mr.
Zhang has waived the attorney-client privilege with regards to those communications.
Furthermore, Mr. Zhang also testified that he had relied on the advice of his prior counsel
in executing declarations which he admitted contained false information. As a result, he has
placed the advice of his prior counsel at issue as to what he understood the true facts of the case
to be at the time they prepared his declaration in support of the Application for Preliminary
Injunction. Pursuant to the California Practice Guide: Professional Responsibility Section 7:356,
“clients who seek to excuse or justify wrongful acts by claiming they relied on advice of counsel
waive the attorney-client privilege as to communications and documents relating to the advice."
Transamerica Title Ins. Co. v. Sup.Ct. (Bank of the West) (1987) 188 Cal.App.3d 1047, 1053.
Additionally, Mr. Zhang has testified that he speaks very little English and reads no
English, however he also testified in his deposition that he spoke to both Mssrs. Schinner and
Chevalier in English, without the assistance of an interpreter, and that he reviewed documents
1064070.1FRANDZEL ROBINS BLOOM
& CSATO, L.c
Maureen McCuaig, Esq.
August 29, 2012
Page 3
Re: Cathay Bank y. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
related to the case written in English which had not been translated for him in Cantonese. Mr.
Zhang has placed his language facility at issue in this case and, as a result of his testimony
regarding specific conversations with his prior counsel in English without the use of an
interpreter, has also placed any information regarding his ability to communicate with non-
Cantonese speaking former counsel at issue as well.
With regards to work-product doctrine, Mr. Zhang also testified as to the method in
which he and his attorneys reviewed and made changes to the Declaration, including the
following:
Q. Did you spend time discussing your declaration with your lawyers before your signed
it?
Yes.
. How much time did you spend with them doing that task?
. Around half an hour.
Who was involved in that process at your lawyer's law firm?
. Quinn and Michael.
. Was anyone else present at that meeting?
No.
. Did they read each paragraph of the declaration to you in English?
> Oo Pre re > OD >
Yes.
Q. And did you understand at least as you — At any time did you believe that you did not
understand what they were saying to you?
A. A little bit.
Q. But did you say anything to your lawyers if you did not understand a statement that
they were reading to you?
1064070.1FRANDZEL ROBINS BLOOM
& CSATO, L.c.
Maureen McCuaig, Esq.
August 29, 2012
Page 4
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No, CGC-10-500934
A. Yes.
Q. And were any changes made to the draft after you started that meeting, the second
meeting?
A. I don’t know.
Zhang Depo at 116:7-118:14. This is also one example of several instances where Mr. Zhang
testified regarding his process of reviewing the Declaration with his prior counsel and the
contents of those discussions. No objection was every made, nor was Mr. Zhang instructed not
to answer these questions. As a result he has waived any work-product protection regarding the
Declaration. Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405, 411 ["The
attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work
product privilege to prevent the opposing party from viewing the document."] As a result of Mr.
Zhang's testimony, and prior counsel's failure to object or otherwise prevent the disclosure, both
Mr. Zhang and his prior counsel have waived the work-product protection as to the Declaration.
Please be advised that Kenneth N. Russak, the partner principally responsible for
managing the litigation in this case is on vacation this week. He may comment further on the
issues raised in your August 24, 2012 letter after his return on September 3, 2012.
Based on the above and the attached deposition excerpts, the Bank will serve its
Subpoena for Production of Business Records to the Custodian of Records of Schinner Law
Group when the notice period on the Notice to Consumer expires. Please feel free to contact me
directly to discuss this matter further.
Very truly yours,
FRANDZEL ROBII OOM & CSATO, L.C.
HBR:
ec: Michael Gerard Fletcher, Esq.
Kenneth N. Russak, Esq.
1064070.1RAYMOND XIANG KAI ZHANG - 4/15/2011
24
25
place on March 10?
A. Yes.
Q. Did you sign any documents before that hearing,
to assist your lawyer in connection with that hearing?
A. Yes.
Q. Did you sign something that looks like
Exhibit 6?
A. Yes.
Q. What did you think you were signing when you
signed that document?
A. Signing something to stop them from
foreclosing.
Q. Did you understand that the document that you
were signing was written testimony from you that the
judge would consider in connection with the effort to
stop the foreclosure that your lawyer was undertaking?
A. Yes.
Q. And before you signed the document did anybody
translate the document for you?
A. My attorney did explain it in detail.
Q. Was it a word-for-word translation?
A. I would ask about things that I did not
understand.
Q. Which attorney explained it to you?
A. My attorney.
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1 Q. What's his name?
2 A. Quinn.
3 Q. So it's this lawyer here, Quinn Chevalier?
4 A. Yes.
5 Q. Does Mr. Chevalier speak Chinese?
6 A. No.
7 Q. So he explained it to you in English?
8 A. Yes.
9 Q. Did anyone else explain what was in the
10 document or translate it for you, other than
11 Mr. Chevalier?
12 A. No.
13 Q. Was there any portion of the declaration that
14 Mr. Chevalier explained to you that you do not feel you
15 understood completely well before you signed it?
16 A. No.
17 Q. Please turn to the second page of Exhibit 6.
18 A. Okay.
19 Q. I will ask the translator to point to
20 paragraph 3 at line 5. And you will see there that
21 there is a reference to a company called Rai Kai,
22 spelled R-a-i, K-a-i, LLC.
23 Do you see that?
24 A. Yes.
25 Q. And attached to the declaration as the first
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encumbered the Third Street property until you received
Exhibit 17; is that correct?
A. Yes.
Q. And when you got Exhibit 17, you saw that
Exhibit 14 was in there?
A. I don't know about this document (indicating),
but I just saw the address in here (indicating).
Q. Okay. So let's flip through to where you saw
the address. I think you might find it on page 14 of
the Complaint, paragraph 51.
A. Yeah.
Q. Do you read English well enough to read out
loud the first two lines of paragraph 51?
A. No.
Q. So you saw the Third Street address in there,
you could read that; is that what you're saying?
A. Yes.
Q. Did that seem significant to you?
A. I gave this to my attorney and my attorney told
me about this.
Q. Okay. But my question to you is: When you
read it for the first time, did the Third Street address
seem significant to you?
MR. CHEVALIER: I have to object. He's already
said that he doesn't read. So when you say "When you
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24
25
You learned that the bank had a deed of trust
against your Third Street Property sometime after you
were served with the lawsuit in June of —— in or about
June of 2010; correct?
A. Yes.
Q. And did you believe that the bank had tricked
you into signing the deed of trust?
A. Yes.
Q. Did you tell that to your lawyer?
A. Yes.
Q. Do you believe your lawyer understood you when
you told him that?
A. I think he understood.
MR. RUSSAK: Let's take a break for a second.
I want to chat with you for a moment.
Off the record.
(Recess was taken from 5:16 until 5:32.)
MR. RUSSAK: Q. I'd like to turn your
attention back to Exhibit 6, your declaration. And I
will ask the translator to read to you Paragraphs 12 and
13 of the declaration.
Mr. Zhang, are the statements in paragraphs 12
and 13 of your declaration, which is Exhibit 6, true and
correct?
A. 12 and 13?
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1 Q. Yes.
2 A. I think that these two paragraphs are not that
3 correct.
4 Q. In what way are they incorrect?
5 A. We didn't know we had to provide the Third
6 Street as collateral.
7 Q. So why did you sign a declaration that included
8 this language?
9 A. Maybe there was some places where I and the
10 attorney did not quite understand each other.
11 Q. I want to draw your attention back to the day
12 on which you signed this declaration. It was the day
13 before the TRO hearing.
14 And you know what I mean by "TRO hearing,"
15 don't you?
16 A. Yes.
17 Q. What do you understand the TRO hearing to be?
18 A. The restraining order.
19 Q. For the foreclosure?
20 A. Yes.
21 Q. Okay. How did you communicate with your lawyer
22 prior to the preparation of this declaration? Did you
23 sit down and have a meeting with him and talk with him
24 about the facts?
25 A. Yes.
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24
25
Q. And when you had that conversation with him for
the first time, was there already a draft declaration
prepared that he had written first?
A. Yes.
Q. Before the draft declaration was prepared, did
you have any discussions with him about the facts of
your case?
A. Yes.
Q. And when did that conversation take place?
A. Before -- One week before March 9th.
Q. Did you have an in-person meeting with him?
. Yes.
Who else was present?
Michael.
Another lawyer?
Yes.
A
Q
A
Q
A
Q. Somebody who works with Mr. Chevalier?
A Yes.
Q Would that be Michael Schinner?
A Yes.
Q. How do you know Mr. Schinner?
A. Friend introduced us.
MR. RAANAN: Before I forget: Bill, what's his
last name?
MS. RAANAN: Langdon.
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1 MR. RUSSAK: Q. Bill Langdon, how did you meet
2 Mr. Langdon and how did he come to be working on your
3 project?
4 A. It also was a referral from a friend.
5 Q. But it was not a referral from the bank?
6 A. No.
7 Q. Okay. So you had a meeting with Mr. Schinner
8 and Mr. Chevalier, and you discussed the facts of your
9 case about a week before the TRO hearing; correct?
10 A. Yes.
11 Q. What did you tell them about the deed of trust
12 on the Third Street property?
13 A. I said I did not know that that was there.
14 Q. Did you tell them that you thought you had been
15 tricked into signing it?
16 A. Yes.
17 Q. Was anybody other than Mr. Schinner and
18 Mr. Chevalier with you in the meeting?
19 A. No.
20 Q. Your wife wasn't there, or your son?
21 A. No.
22 Q. So after your first meeting, your lawyers
23 prepared a draft declaration. And then you came back
24 later to review it and sign it maybe the day before the
25 hearing; is that right?
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| 1 A. Yes.
| 2 Q. What was the process by which you ~- Well, back
| 3 up.
| 4 Did you review the declaration before you
! 5 signed it?
6 A. I did not, because I cannot read it.
| 7 Q. Did you spend time discussing your declaration
8 with your lawyers before you signed it?
9 A. Yes.
: 10 Q. How much time did you spend with them doing
11 that task?
12 A. Around half an hour.
13 Q. And who was involved in that process at your
14 lawyer's law firm?
15 A. Quinn and Michael.
16 Q. Was anyone else present at that meeting?
17 A. No.
18 Q. Did they read each paragraph of the declaration
19 to you in English?
20 A. Yes.
21 Q. And did you understand at least as you -~- At
22 any time did you believe that you did not understand
23 what they were saying to you?
24 A. A little bit.
25 Q. In which instances? Do you recall any specific
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1 areas where you thought you didn't understand them?
2 A. Every so often there would be something I did
3 not understand.
4 Q. Okay. But they read each and every paragraph
5 to you in English?
6 A. Yes.
7 Q. On the very last page of the document, of your
8 declaration, excuse me, page 6, the words are, on line
9 17, "I declare under penalty of perjury under the laws
10 of the State of California that the foregoing is true
11 and correct."
12 Do you see that language?
13 A. I didn't really know how to read it. I just
14 signed.
15 Q. No, did your lawyers read that particular
16 sentence to you?
17 A. They did.
18 Q. Did you understand what they said when they
19 read that sentence to you?
20 A. No.
21 Q Did you ask them to explain it to you?
22 A No.
23 Q. Why not?
24 A I trusted the attorney.
25 Q Do you understand what “penalty of perjury"
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means?
A. No.
Q. In other instances where there was something
that they read to you that you didn't understand, what
did you do?
A. If it's not that important, then it's just what
it is.
Q. But did you say anything to your lawyers if you
did not understand a statement that they were reading to
you?
A. Yes.
Q. And were any changes made to the draft after
you started that meeting, the second meeting?
A. I don't know.
Q. I want to try to jog your memory just a little
bit. Okay?
It's possible that you got there and they
presented you with a document; and as they read through
the document to you, you might have interrupted them or
corrected them at some point and said, “What you said
about that thing is not quite right."
Did anything like that happen?
A. Yes, but when they read it again, sometimes I
still did not understand.
Q. But if you corrected them and said something is
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1 MR. CHEVALIER: I have to object to that,
2 though. Because those phone numbers, given that those
3 ladies are so far removed from the parties here, that is
4 private, confidential.
5 MR. RUSSAK: Well, you're welcome to make that
6 objection. I will move to compel if you assert that in
7 any obstructive way. It is reasonably calculated to
8 lead to the discovery of admissible evidence: the
9 address and phone number of Dong Ying Qui. If the
10 witness wants to do his own investigation and, in lieu
11 of filling our that information, give us Dong Ying Qui's
12 updated contact information, that's all I need. But
13 failing that, I need the other phone numbers.
14 MR. CHEVALIER: All right. So, yeah, I mean,
15 leave the space. I'll probably do that if we can find
16 it.
17 MR. RUSSAK: I have to tell you, these are very
18 serious allegations of potential forgery in the deed of
19 trust, and I intend to investigate them fully and I will
20 not stand still for obstruction.
21 MR. CHEVALIER: Okay.
22 MR. RUSSAK: Q. Turn back to your declaration,
23 please, Exhibit 6. And if you'll turn to the fifth
24 page, and I'll ask the translator to read to you again
25 paragraph 21. I know we discussed it previously, but I
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1 want to direct your attention to it again.
2 A. Could you read that again?
3 Q. I just want the translator to read to you
4 paragraph 21 and then I'll ask you a question about it.
5 A. Not so.
6 MR. RUSSAK: You read it to him?
7 THE INTERPRETER: Yeah, and he said, "Not so."
8 MR. RUSSAK: Q. And I think earlier in our
9 deposition today you said that that paragraph was not
10 completely accurate. My question to you is: What would
11 you change in that paragraph to make it accurate?
12 A. It's the bank did not give me any since the
13 last extension.
14 Q. Since the sixth extension agreement?
15 A. Yes.
16 Q. And that's Exhibit 13; correct?
17 A. Yeah.
18 Q. Has it given you any money since you executed
19 the fifth extension agreement, which is Exhibit 12?
20 A. Yes.
21 Q. When and how much?
22 A. I don't remember when and how much.
23 Q. After you signed Exhibit 13, you were told by
24 Nicholas Chung that the maturity date would be extended
25 to April 1, 2010; correct?
Page 131
Merrill Corporation - Los Angeles
800-826-0277 www.merrillcorp.com/lawExhibit DFRANDZEL ROBINS BLOOM & CSATO, L.C.
LAWYERS
WWW. FRANDZEL.COM
LOS ANGELES OFFICE SAN JOSE OFFICE
6500 WILSHIRE BOULEVARD 225 W. SANTA CLARA STREET
SEVENTEENTH FLOOR SUITE 1500
LOS ANGELES, CALIFORNIA 90048-4920 SAN JOSE, CALIFORNIA 95113
TELEPHONE (323) 852-1000 TELEPHONE (408) 457-3696
FACSIMILE (323) 651-2577
Direct DiaL: (323) 658-0745 Our Fite # 023000-0790
E-MAIL: HRAANAN@FRANDZEL.COM REPLY To Los ANGELES
August 29, 2012
VIA E-MAIL ON AUGUST 29, 2012
FACSIMILE AND U.S. MAIL ON AUGUST 30, 2012
Maureen McCuaig, Esq.
CJH & Associates, P.C.
1440 Broadway, Suite 1000
Oakland, CA 94612
Facsimile: (510) 251-1155
Email: mmcuaig@cjhulaw.com
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
Dear Maureen:
lam in receipt of your August 28, 2012 letter regarding "Notice of Deposition Subpoena
for Production of Business Records to Quinn Chevalier." First, just to be clear, we served your
office with the Notice to Consumer regarding our Subpoena for Production of Business Records
directed at Quinn Chevalier. Your clients' rights regarding that subpoena, which has not yet been
served on Mr. Chevalier, are set forth in the Notice to Consumer.
With regards to your statement regarding attorney-client privilege and work-product
doctrine, these privileges are absolute, unless they are waived. We contend that Raymond Zhang
and his prior attorneys waived both the attorney-client privilege and work-product doctrine by
answering specific questions regarding conversations he had with his attorneys and the content
of those conversations during his deposition on April 15, 2011. Generally, a privilege for
confidential communications is waived by the holder's voluntary disclosure, or consent to
disclosure of a significant part of the communication. Evidence Code 912(a). A "significant
part" means disclosure of enough substantive information as to reveal the specific content of the
alleged confidential communication. Southern Calif. Gas Co. v. Public Util. Comm'n (1990) 50
Cal.3d 31, 46' Mitchell v, Sup.Ct. (Shell Oil Co.).(1984) 37 Cal.3d 591, 601-602; Julrik
Productions, Inc. v. Chester (1974) 38 Cal.App.3d 807, 811 [attorney client privilege was waived
as to a letter written by client to Attorney where the client testified on cross-examination as to
the existence and content of the letter].
1066681.1 joveans
of SERVICEFRANOZEL ROBINS BLOOM
& Csato, L.c.
Maureen McCuaig, Esq.
August 29, 2012
Page 2
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
Chevalier of the Schinner Law Group. Mr. Zhang answered the questions and no objection was
made on the grounds of attorney-client privilege. I have attached excerpts of his deposition
which contain the waivers to this letter. As an example, Mr. Zhang was asked the following:
Mr. Russak: Okay. So you had a meeting with Mr. Schinner and
Mr. Chevalier, and you discussed the facts of your case about a
week before the TRO hearing; correct?
Raymond Zhang: Yes.
Q: What did you tell them about the deed of trust on the Third
Street property?
A: I said I did not know that that was there.
Q: Did you tell them that you thought you had been tricked into
signing it?
A: Yes.
Raymond Zhang Deposition ("Zhang Depo") at 115:7-16. This is only one example of several in
which Mr. Zhang was asked about specific conversations with his former attorneys, the Schinner
Law Group, including how they had reviewed and determined the information to be included in
his declarations and how they communicated regarding the facts of the case. Asa result, Mr.
Zhang has waived the attorney-client privilege with regards to those communications.
Furthermore, Mr. Zhang also testified that he had relied on the advice of his prior counsel
in executing declarations which he admitted contained false information. As a result, he has
placed the advice of his prior counsel at issue as to what he understood the true facts of the case
to be at the time they prepared his declaration in support of the Application for Preliminary
Injunction. Pursuant to the California Practice Guide: Professional Responsibility Section 7:356,
“clients who seek to excuse or justify wrongful acts by claiming they relied on advice of counsel
waive the attorney-client privilege as to communications and documents relating to the advice."
Transamerica Title Ins. Co. v. Sup.Ct. (Bank of the West) (1987) 188 Cal.App.3d 1047, 1053.
Additionally, Mr. Zhang has testified that he speaks very little English and reads no
English, however he also testified in his deposition that he spoke to both Mssrs. Schinner and
Chevalier in English, without the assistance of an interpreter, and that he reviewed documents
related to the case written in English which had not been translated for him in Cantonese. Mr.
Zhang has placed his language facility at issue in this case and, as a result of his testimony
106668 1.1FRANDZEL ROBINS BLOOM
& Csato, L.c.
Maureen McCuaig, Esq.
August 29, 2012
Page 3
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
regarding specific conversations with his prior counsel in English without the use of an
interpreter, has also placed any information regarding his ability to communicate with non-
Cantonese speaking former counsel at issue as well.
With regards to work-product doctrine, Mr. Zhang also testified as to the method in
which he and his attorneys reviewed and made changes to the Declaration, including the
following:
Q. Did you spend time discussing your declaration with your lawyers before your signed
it?
. Yes.
. How much time did you spend with them doing that task?
. Around half an hour.
. Who was involved in that process at your lawyer's law firm?
A
Q
A.
Q
A. Quinn and Michael.
Q. Was anyone else present at that meeting?
A. No.
Q. Did they read each paragraph of the declaration to you in English?
A. Yes.
Q. And did you understand at least as you ~ At any time did you believe that you did not
understand what they were saying to you?
A. A little bit.
Q. But did you say anything to your lawyers if you did not understand a statement that
they were reading to you?
A. Yes.
1066681.1FRANDZEL ROBINS BLOOM
& CsaTo, L.c.
Maureen McCuaig, Esq.
August 29, 2012
Page 4
Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San
Francisco Superior Court Case No. CGC-10-500934
Q. And were any changes made to the draft after you started that meeting, the second
meeting?
A. I don’t know.
Zhang Depo at 116:7-118:14. This is also one example of several instances where Mr. Zhang
testified regarding his process of reviewing the Declaration with his prior counsel and the
contents of those discussions. No objection was every made, nor was Mr. Zhang instructed not
to answer these questions. As a result he has waived any work-product protection regarding the
Declaration. Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405, 411 ["The
attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work
product privilege to prevent the opposing party from viewing the document."] As a result of Mr.
Zhang's testimony, and prior counsel's failure to object or otherwise prevent the disclosure, both
Mr. Zhang and his prior counsel have waived the work-product protection as to the Declaration.
Based on the above and the attached deposition excerpts, the Bank will serve its
Subpoena for Production of Business Records to Quinn Chevalier when the notice period on the
Notice to Consumer expires. Please feel free to contact me directly to discuss this matter further.
Please be advised that Kenneth N. Russak, the partner principally responsible for
managing the litigation in this case is on vacation this week. He may comment further on the
issues raised in your August 24, 2012 letter after his return on September 3, 2012.
Very truly yours,
IM & CSATO, L.C.
FRANDZEL ROBINS B)
/ HANNA B. [AN
HBR:
cc: Michael Gerard Fletcher, Esq.
Kenneth N. Russak, Esq.
1066681.)RAYMOND XIANG KAI ZHANG - 4/15/2011
1 place on March 10?
2 A. Yes.
3 Q. Did you sign any documents before that hearing,
4 to assist your lawyer in connection with that hearing?
5 A. Yes.
6 Q. Did you sign something that looks like
7 Exhibit 6?
8 A. Yes.
9 Q. What did you think you were signing when you
10 signed that document?
11 A. Signing something to stop them from
12 foreclosing.
13 Q. Did you understand that the document that you
14 were signing was written testimony from you that the
15 judge would consider in connection with the effort to
16 stop the foreclosure that your lawyer was undertaking?
17 A. Yes.
18 Q. And before you signed the document did anybody
19 translate the document for you?
20 A. My attorney did explain it in detail.
21 Q. Was it a word-for-word translation?
22 A. I would ask about things that I did not
23 understand.
24 Q. Which attorney explained it to you?
25 A. My attorney.
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21 there
22 spell
1 Q. What's his name?
2 A. Quinn.
3 Q. So it's this lawyer here, Quinn Chevalier?
4 A. Yes.
5 Q. Does Mr. Chevalier speak Chinese?
6 A. No.
7 Q. So he explained it to you in English?
8 A. Yes.
9 Q. Did anyone else explain what was in the
10 document or translate it for you, other than
11 Mr. Chevalier?
12 A. No.
13 Q. Was there any portion of the declaration that
14 Mr. Chevalier explained to you that you do not feel you
15 understood completely well before you signed it?
16 A. No.
17 Q. Please turn to the second page of Exhibit 6.
18 A. Okay.
19 Q. I will ask the translator to point to
20 paragraph 3 at line 5. And you will see there that
is a reference to a company called Rai Kai
ed R-a-i, K-a-i, LLC.
Do you see that?
A. Yes.
Q. And attached to the declaration as the first
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won
24
25
encumbered the Third Street property until you received
Exhibit 17; is that correct?
A. Yes.
Q. And when you got Exhibit 17, you saw that
Exhibit 14 was in there?
A. I don't know about this document (indicating),
but I just saw the address in here (indicating).
Q. Okay. So let's flip through to where you saw
the address. I think you might find it on page 14 of
the Complaint, paragraph 51.
A. Yeah.
Q. Do you read English well enough to read out
loud the first two lines of paragraph 51?
A. No.
Q. So you saw the Third Street address in there,
you could read that; is that what you're saying?
A. Yes.
Q. Did that seem significant to you?
A. I gave this to my attorney and my attorney told
me about this.
Q. Okay. But my question to you is: When you
read it for the first time, did the Third Street address
seem significant to you?
MR. CHEVALIER: I have to object. He's already
said that he doesn't read. So when you say "When you
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You learned that the bank had a deed of trust
against your Third Street property sometime after you
were served with the lawsuit in June of -- in or about
June of 2010; correct?
A. Yes.
Q. And did you believe that the bank had tricked
you into signing the deed of trust?
A. Yes.
Q. Did you tell that to your lawyer?
A. Yes.
Q. Do you believe your lawyer understood you when
you told him that?
A. I think he understood.
MR. RUSSAK: Let's take a break for a second.
I want to chat with you for a moment.
Off the record.
(Recess was taken from 5:16 until 5:32.)
MR. RUSSAK: Q. I'd like to turn your
attention back to Exhibit 6, your declaration. And I
will ask the translator to read to you paragraphs 12 and
13 of the declaration.
Mr. Zhang, are the statements in paragraphs 12
and 13 of your declaration, which is Exhibit 6, true and
correct?
A. 12 and 13?
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1 Q. Yes.
2 A. I think that these two paragraphs are not that
3 correct.
4 Q. %In what way are they incorrect?
5 A. We didn't know we had to provide the Third
6 Street as collateral.
7 Q. So why did you sign a declaration that included
8 this language?
9 A. Maybe there was some places where I and the
10 attorney did not quite understand each other.
11 Q. I want to draw your attention back to the day
12 on which you signed this declaration. It was the day
13 before the TRO hearing.
14 And you know what I mean by "TRO hearing,"
15 don't you?
16 A. Yes.
17 Q. What do you understand the TRO hearing to be?
18 A. The restraining order.
19 Q. For the foreclosure?
20 A. Yes.
21 Q. Okay. How did you communicate with your lawyer
22 prior to the preparation of this declaration? Did you
23 sit down and have a meeting with him and talk with him
24 about the facts?
25 A. Yes.
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1 Q. And when you had that conversation with him for
2 the first time, was there already a draft declaration
3 prepared that he had written first?
4 A. Yes.
5 Q. Before the draft declaration was prepared, did
6 you have any discussions with him about the facts of
7 your case?
8 A. Yes.
9 Q. And when did that conversation take place?
10 A. Before -- One week before March 9th.
11 Q. Did you have an in-person meeting with him?
12 A Yes.
13 Q. Who else was present?
14 A. Michael.
15 Q. Another lawyer?
16 A. Yes.
17 Q. Somebody who works with Mr. Chevalier?
18 A. Yes.
19 Q. Would that be Michael Schinner?
20 A. Yes.
21 Q. How do you know Mr. Schinner?
22 A. Friend introduced us.
23 MR. RAANAN: Before I forget: Bill, what's his
24 last name?
25 MS. RAANAN: Langdon.
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1 MR. RUSSAK: Q. Bill Langdon, how did you meet
2 Mr. Langdon and how did he come to be working on your
3 project?
4 A. It also was a referral from a friend.
5 Q. But it was not a referral from the bank?
6 A. No.
7 Q. Okay. So you had a meeting with Mr. Schinner
8 and Mr. Chevalier, and you discussed the facts of your
9 case about a week before the TRO hearing; correct?
10 A. Yes.
ll Q. What did you tell them about the deed of trust
12 on the Third Street property?
13 A. I said I did not know that that was there.
14 Q. Did you tell them that you thought you had been
15 tricked into signing it?
16 A. Yes,
17 Q. Was anybody other than Mr. Schinner and
18 Mr. Chevalier with you in the meeting?
19 A. No.
20 Q. Your wife wasn't there, or your son?
21 A. No.
22 Q. So after your first meeting, your lawyers
23 prepared a draft declaration. And then you came back
24 later to review it and sign it maybe the day before the
25 hearing; is that right?
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A. Yes.
Q. What was the process by which you -~ Well, back
up.
Did you review the declaration before you
signed it? ,
A. I did not, because I cannot read it.
Q. Did you spend time discussing your declaration
with your lawyers before you signed it?
A. Yes.
Q. How much time did you spend with them doing
that task?
A. Around half an hour.
Q. And who was involved in that process at your
lawyer's law firm?
A. Quinn and Michael.
Q. Was anyone else present at that meeting?
A. No.
Q. Did théy read each paragraph of the declaration
to you in English?
A. Yes.
Q. And did you understand at least as you -- At
any time did you believe that you did not understand
what they were saying to you?
A. A little bit.
Q. In which instances? Do you recall any specific
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areas where you thought you didn't understand them?
A. Every so often there would be something I did
not understand.
Q. Okay. But they read each and every paragraph
to you in English?
A. Yes.
Q. On the very last page of the document, of your
declaration, excuse me, page 6, the words are, on line
17, "I declare under penalty of perjury under the laws
of the State of California that the foregoing is true
and correct."
Do you see that language?
A. I didn't really know how to read it. I just
signed.
Q. No, did your lawyers read that particular
sentence to you?
A. They did.
Q. Did you understand what they said when they
read that sentence to you?
A. No.
Q. Did you ask them to explain it to you?
A. No.
Q. Why not?
A. I trusted the attorney.
Q. Do you understand what "penalty of perjury"
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won
means?
A. No.
Q. In other instances where there was something
that they read to you that you didn't understand, what
did you do?
A. If it's not that important, then it's just what
it is.
Q. But did you say anything to your lawyers if you
did not understand a statement that they were reading to
you? :
A. Yes.
Q. And were any changes made to the draft after
you started that meeting, the second meeting?
A. I don't know.
Q. I want to try to jog your memory just a little
bit. Okay?
It's possible that you got there and they
presented you with a document; and as they read through
the document to you, you might have interrupted them or
corrected them at some point and said, "What you said
about that thing is not quite right."
Did anything like that happen?
A. Yes, but when they read it again, sometimes I
still did not understand.
Q. But if you corrected them and said something is
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MR. CHEVALIER: I have to object to that,
2 though. Because those phone numbers, given that those
3 ladies are so far removed from the parties here, that is
4 private, confidential.
5 MR. RUSSAK: Well, you're welcome to make that
6 objection. I will move to compel if you assert that in
7 any obstructive way. It is reasonably calculated to
8 lead to the discovery of admissible evidence: the
9 address and phone number of Dong Ying Qui. If the
10 witness wants to do his own investigation and, in lieu
11 of filling our that information, give us Dong Ying Qui's
12 updated contact information, that's all I need. But
13 failing that, I need the other phone numbers.
14 MR. CHEVALIER: All right. So, yeah, I mean,
15 leave the space. I'll probably do that if we can find
16 it.
17 MR. RUSSAK: I have to tell you, these are very
18 serious allegations of potential forgery in the deed of
19 trust, and I intend to investigate them fully and I will
20 not stand still for obstruction.
21 MR. CHEVALIER: Okay.
22 MR. RUSSAK: Q. Turn back to your declaration,
23 Please, Exhibit 6. And if you'll turn to the fifth
24 page, and I'll ask the translator to read to you again
25 Paragraph 21. I know we discussed it previously, but I
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1 want to direct your attention to it again.
2 A. Could you read that again?
3 Q. I just want the translator to read to you
4 Paragraph 21 and then I'll ask you a question about it.
5 A. Not so.
6 . MR. RUSSAK: You read it to him?
7 THE INTERPRETER: Yeah, and he said, "Not so."
8 MR. RUSSAK: Q. And I think earlier in our
9 deposition today you said that that paragraph was not
10 completely accurate. My question to you is: What would
ll you change in that paragraph to make it accurate?
12 A. It's the bank did not give me any since the
13 last extension.
14 Q. Since the sixth extension agreement?
is A. Yes.
16 Q. And that's Exhibit 13; correct?
17 A. Yeah.
18 Q. Has it given you any money since you executed
19 the fifth extension agreement, which is Exhibit 12?
20 A. Yes.
21 Q. When and how much?
22 A. I don't remember when and how much.
23 Q. After you signed Exhibit 13, you were told by
24 Nicholas Chung that the maturity date would be extended
25 to April 1, 2010; correct?
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Merrill Corporation - Los Angeles
800-826-0277 www.merrillcorp.com/lawExhibit EMaureen McCuaig _
From: Maureen McCuaig [mmccuaig
Preview
UCN SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-10-2012 2:55 pm Case Number: CGC-10-500934 Filing Date: Sep-10-2012 2:53 Filed by: Juke Box: 001 Image: 03757104 DECLARATION CATHAY BANK, A CALIFORNIA BANKING CORPORATION VS. RAYMOND XIANG ZHANG et al 001003757104 Instructions: Please place this sheet on top of the document to be scanned. ddChijeh Hu (SBN 241271) CJH & Associates 1440 Broadway, Suite 1000 Oakland, CA 94612 Telephone: (510) 832-1686 Fax: (510) 251-1155 Attorney for Defendants/Cross Complainants, RAYMOND ZHANG, et al. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO CATHAY BANK, a California banking CASE NO: CGC- 10 - 500934 Corporation, DECLARATION OF MAUREEN MCCUAIG Plaintiff, IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION SUBPOENAS FOR v. CONSUMER RECORDS OF DEFENDANTS, AND REQUEST FOR MONETARY RAYMOND XIANG KAI ZHANG, et al... | SANCTIONS Defendants. Date: October 12, 2012 Time: 9:30am Dept.: 302 I, Maureen McCuaig, declare as follows: 1. I am an attorney duly licensed to practice law before all the courts in the State of California and an associate at CJH & Associates, P.C., counsel of record for Defendants in the above-captioned case. I have recently been assigned to the day-to-day handling of this matter for my firm. As such, and pursuant to my firm’s custom and practices, I receive copies of all pleadings, motions, notices and other documents pertaining to the instant action. 2. I have personal knowledge of the facts stated herein and if called upon I could testify competently as to the matters stated herein. -l- DECLARATION OF MAUREEN MCCUAIG IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION SUBPOENAS FOR CONSUMER RECORDS OF DEFENDANTS3. On or about August 23, 2012, Defendants and Cross-complainants Raymond Zhang, Cindy Zhang, and Dong Ying Qui were served, through my office, with two notices for subpoenas of business records, one to Custodian of Records Schinner Law Group and the other to Quinn Chevalier. Copies of these notices are attached to this motion. 4, Our office objects to the attached subpoenas, on behalf of Defendants, on the grounds that the overbroad categories of document requests seek material protected by attorney- client privilege and the work-product doctrine, or otherwise irrelevant material, from former counsel in the above-captioned matter. 5. I have made a good faith effort to resolve this issue with Plaintiff's counsel prior to filing the present motion. 6. In August 24, 2012 and August 28, 2012 letters sent by me on behalf of Defendants to Plaintiffs attorney, Hanna Raanan at Frandzel Robins Bloom & Csato, true and correct copies of which are attached as Ex. A and Ex. B, I requested, on behalf of Defendants, that Plaintiff withdraw the subpoenas on the grounds of attorney-client privilege and the work product doctrine. 7. In August 29, 2012 reply letters, true and correct copies of which are attached as Ex. C and Ex. D, Ms. Raanan stated her intention to serve the subject subpoenas once the notice period on the Notice to Consumer expires. 8. My August 30, 2012 email to Plaintiff's counsel, a true and correct copy of which is attached as Ex. E , noted that Plaintiff completely failed to assert any waiver of privilege with respect to Defendants Cindy Zhang or Don Ying Qui, and required that such requests for documents relating to their legal representation be withdrawn. 9. In an August 30, 2012 response email, a true and correct copy of which is attached as Ex. F, Plaintiff's counsel stated, “[w]e will amend the subpoenas to remove references to Cindy| Zhang and Dong Ying Qui.” To date, Defendants have received no copies of any amended subpoenas. 10. Our firm, on behalf of Defendants, requests that a monetary sanction be imposed against Plaintiff Cathay Bank and its counsel Frandzel Robins Bloom & Csato in the sum of -2- DECLARATION OF MAUREEN MCCUAIG IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION SUBPOENAS FOR CONSUMER RECORDS OF DEFENDANTS,$3,500, incurred as a result of the reasonable expenses and attorney fees itemized as follows: 2 hours of meet and confer, 4 hours to prepare the instant motion, 2 hours anticipated review of the Plaintiff's opposition of the instant motion, 2 hours anticipated to reply to Plaintiffs opposition of| the instant motion, 2 hours to prepare for hearing and 2 hours to attend a hearing on the instant motion. In total, our firm anticipates billing 14 hours as a result of bringing the instant motion. Our firm bills clients at $250 per hour. Accordingly, we request monetary sanctions in the amount] of $3,500. An estimated ten percent of that sum, $350, is attributable to Plaintiff's failure to serve amended subpoenas that removed references to Cindy Zhang and Dong Ying Qui, as promised. I declare under penalty of perjury and under the laws of the State of California that the foregoing is true and correct. Executed this_[O day of September 2012 at Okla £ ; California. by. lisa Le lx MAUREEN MCCU. 3. DECLARATION OF MAUREEN MCCUAIG IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH DEPOSITION SUBPOENAS FOR CONSUMER RECORDS OF DEFENDANTSExhibit A) CJH&Associates sores comer August 24, 2012 VIA U.S. MAIL & EMAIL (hraanan@frandzel.com) Ms. Hanna Raanan Frandzel Robins Bloom & Csato, L.C. 6500 Wilshire Boulevard, Seventeenth Floor Los Angeles, California 90048 Re: Cathay Bank v. Raymond Zhang, et al., Case No. CGC-10-500934 Meet and Confer re: Cathay’s Notice of Subpoena Dear Hanna, We are in receipt of your August 23, 2012 Notice of Deposition Subpoena for Production of Business Records to the Custodian of Records Schinner Law Group. This letter serves as my good faith attempt to informally resolve the issue of your subpoena for documents from our clients’ former counsel in this case, Schinner Law Group, before proceeding with the appropriate motions, including sanctions. Both the attorney-client privilege and work-product doctrine are absolute in California civil cases. Your request for the production of documents blatantly and shamelessly seeks protected attorney-client and attorney work-product material, requesting “all of the documents described below, whether or not they came into your possession, custody or control before, during or after the period in which you had a formal attorney-client relationship with any one or more of Raymond Zhang, Cindy Zhang or Don Ying Qui.” Your requests for such documents can only be meant to harass our clients and undermine their privilege with counsel. We require that you immediately withdraw this subpoena request. Please confirm in writing that you have done so no later than 5:00 p.m. on Monday, August 27, 2012. Sincerely, CJH & Associates, P.C. mmccuaig@cjhapc.com Attorneys for Defendant and Cross-Complainant 1440 Broadway, Suite 1000, Oakland, CA 94612 | P: 510.832.1686 | F: 510.251.1155 | E: general@cjhulaw.com | W: www.cjhapc.comExhibit BAugust 28, 2012 VIA U.S. MAIL & EMAIL (hraanan@frandzel.com) Ms. Hanna Raanan Frandzel Robins Bloom & Csato, L.C. 6500 Wilshire Boulevard, Seventeenth Floor Los Angeles, California 90048 Re: Cathay Bank v. Raymond Zhang, et al., Case No, CGC-10-500934 Meet and Confer re: Cathay’s Notice of Subpoena Dear Hanna, We are in receipt of your August 23, 2012 Notice of Deposition Subpoena for Production of Business Records to Quinn Chevalier. This letter serves as my good faith attempt to informally resolve the issue of your subpoena for documents from our clients’ former counsel in this case, Quinn Chevalier, before proceeding with the appropriate motions, including sanctions. Both the attorney-client privilege and work-product doctrine are absolute in California civil cases. Your request for the production of documents blatantly and shamelessly seeks protected attorney-client and attorney work-product material, requesting “all of the documents described below, whether or not they came into your possession, custody or control before, during or after the period in which you had a formal attorney-client relationship with any one or more of Raymond Zhang, Cindy Zhang or Don Ying Qui.” Your requests for such documents can only be meant to harass our clients and undermine their privilege with counsel. We require that you immediately withdraw this subpoena request. Please confirm in writing that you have done so no later than 5:00 p.m. on Wednesday, August 29, 2012. wo y Maureen McCuaig CJH & Associates, P.C. mmecuaig@cjhape.com Attorneys for Defendant and Cross-Complainant 1440 Broadway, Suite 1000, Oakland, CA 94612 | P: 510.832.1686 | F: 510.251.1185 | E: general@cjhulaw.com | W: www.cjhapc.comExhibit CFRANDZEL ROBINS BLOOM & CSATO, L.C. LAWYERS WWW. FRANDZEL.COM LQS ANGELES OFFICE SAN JOSE OFFICE 6500 WILSHIRE BOULEVARD 225 W. SANTA CLARA STREET SEVENTEENTH FLOOR SUITE 1500 LOS ANGELES, CALIFORNIA 90048-4920 SAN JOSE, CALIFORNIA 05113 TELEPHONE (323) 852-1000 TELEPHONE (408) 457-3606 FACSIMILE (923) 651-2577 Direct DiaL: (323) 658-9745 Our Fite # 023000-0790 E-MAIL: HRAANAN@FRANDZEL.COM REPLY To Los ANGELES August 29, 2012 VIA E-MAIL ON AUGUST 29, 2012 FACSIMILE AND U.S. MAIL ON AUGUST 30, 2012 Maureen McCuaig, Esq. CJH & Associates, P.C. 1440 Broadway, Suite 1000 Oakland, CA 94612 Facsimile: (510) 251-1155 Email: mmeuaig@cjhulaw.com Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 Dear Maureen: lam in receipt of your August 24, 2012 letter regarding “Notice of Deposition Subpoena for Production of Business Records to the Custodian of Records Schinner Law Group." First, just to be clear, we served your office with the Notice to Consumer regarding our Subpoena for Production of Business Records directed at the Custodian of Records of Schinner Law Group. Your clients' rights regarding that subpoena, which has not been served on the Custodian of Records of Schinner Law Group, are set forth in the Notice to Consumer. With regards to your statement regarding attorney-client privilege and work-product doctrine, these privileges are absolute, unless they are waived. We contend that Raymond Zhang and his prior attorneys waived both the attorney-client privilege by answering specific questions regarding conversations he had with his attorneys and the content of those conversations during his deposition on April 15, 2011. Generally, a privilege for confidential communications is waived by the holder's voluntary discldsure, or consent to disclosure of a significant part of the communication. Evidence Code 912(&). A "significant part" means disclosure of enough substantive information as to reveal the specific content of the alleged confidential communication. Southern Calif. Gas Co. v. Public Util. Comm'n (1990) 50 Cal.3d 31, 46° Mitchell v. Sup.Ct. (Shell Oil Co.) (1984) 37 Cal.3d 591, 601-602; Julrik Productions, Inc. v. Chester (1974) 38 Cal.App.3d 807, 811 [attorney client privilege was waived as to a letter written by client to Attorney where the client testified on cross-examination as to the existence and content of the letter]. 1064070.11 . FRANDZEL ROBINS BLOOM & CsaTo, L.c. Maureen McCuaig, Esq. August 29, 2012 Page 2 Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 Specifically, at Raymond Zhang's April 15, 2011 deposition, he was asked a series of questions regarding conversations he had with his attorneys Michael Schinner and Quinn Chevalier of the Schinner Law Group. Mr. Zhang answered the questions and no objection was made on the grounds of attorney-client privilege. I have attached excerpts of his deposition which contain the waivers to this letter. As an example, Mr. Zhang was asked the following: Mr. Russak: Okay. So you had a meeting with Mr. Schinner and Mr. Chevalier, and you discussed the facts of your case about a week before the TRO hearing; correct? Raymond Zhang: Yes. Q: What did you tell them about the deed of trust on the Third Street property? A: I said I did not know that that was there. Q: Did you tell them that you thought you had been tricked into signing it? A: Yes. Raymond Zhang Deposition ("Zhang Depo") at 115:7-16. This is only one example of several in which Mr. Zhang was asked about specific conversations with his former attorneys, the Schinner Law Group, including how they had reviewed and determined the information to be included in his declarations and how they communicated regarding the facts of the case. As a result, Mr. Zhang has waived the attorney-client privilege with regards to those communications. Furthermore, Mr. Zhang also testified that he had relied on the advice of his prior counsel in executing declarations which he admitted contained false information. As a result, he has placed the advice of his prior counsel at issue as to what he understood the true facts of the case to be at the time they prepared his declaration in support of the Application for Preliminary Injunction. Pursuant to the California Practice Guide: Professional Responsibility Section 7:356, “clients who seek to excuse or justify wrongful acts by claiming they relied on advice of counsel waive the attorney-client privilege as to communications and documents relating to the advice." Transamerica Title Ins. Co. v. Sup.Ct. (Bank of the West) (1987) 188 Cal.App.3d 1047, 1053. Additionally, Mr. Zhang has testified that he speaks very little English and reads no English, however he also testified in his deposition that he spoke to both Mssrs. Schinner and Chevalier in English, without the assistance of an interpreter, and that he reviewed documents 1064070.1FRANDZEL ROBINS BLOOM & CSATO, L.c Maureen McCuaig, Esq. August 29, 2012 Page 3 Re: Cathay Bank y. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 related to the case written in English which had not been translated for him in Cantonese. Mr. Zhang has placed his language facility at issue in this case and, as a result of his testimony regarding specific conversations with his prior counsel in English without the use of an interpreter, has also placed any information regarding his ability to communicate with non- Cantonese speaking former counsel at issue as well. With regards to work-product doctrine, Mr. Zhang also testified as to the method in which he and his attorneys reviewed and made changes to the Declaration, including the following: Q. Did you spend time discussing your declaration with your lawyers before your signed it? Yes. . How much time did you spend with them doing that task? . Around half an hour. Who was involved in that process at your lawyer's law firm? . Quinn and Michael. . Was anyone else present at that meeting? No. . Did they read each paragraph of the declaration to you in English? > Oo Pre re > OD > Yes. Q. And did you understand at least as you — At any time did you believe that you did not understand what they were saying to you? A. A little bit. Q. But did you say anything to your lawyers if you did not understand a statement that they were reading to you? 1064070.1FRANDZEL ROBINS BLOOM & CSATO, L.c. Maureen McCuaig, Esq. August 29, 2012 Page 4 Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No, CGC-10-500934 A. Yes. Q. And were any changes made to the draft after you started that meeting, the second meeting? A. I don’t know. Zhang Depo at 116:7-118:14. This is also one example of several instances where Mr. Zhang testified regarding his process of reviewing the Declaration with his prior counsel and the contents of those discussions. No objection was every made, nor was Mr. Zhang instructed not to answer these questions. As a result he has waived any work-product protection regarding the Declaration. Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405, 411 ["The attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document."] As a result of Mr. Zhang's testimony, and prior counsel's failure to object or otherwise prevent the disclosure, both Mr. Zhang and his prior counsel have waived the work-product protection as to the Declaration. Please be advised that Kenneth N. Russak, the partner principally responsible for managing the litigation in this case is on vacation this week. He may comment further on the issues raised in your August 24, 2012 letter after his return on September 3, 2012. Based on the above and the attached deposition excerpts, the Bank will serve its Subpoena for Production of Business Records to the Custodian of Records of Schinner Law Group when the notice period on the Notice to Consumer expires. Please feel free to contact me directly to discuss this matter further. Very truly yours, FRANDZEL ROBII OOM & CSATO, L.C. HBR: ec: Michael Gerard Fletcher, Esq. Kenneth N. Russak, Esq. 1064070.1RAYMOND XIANG KAI ZHANG - 4/15/2011 24 25 place on March 10? A. Yes. Q. Did you sign any documents before that hearing, to assist your lawyer in connection with that hearing? A. Yes. Q. Did you sign something that looks like Exhibit 6? A. Yes. Q. What did you think you were signing when you signed that document? A. Signing something to stop them from foreclosing. Q. Did you understand that the document that you were signing was written testimony from you that the judge would consider in connection with the effort to stop the foreclosure that your lawyer was undertaking? A. Yes. Q. And before you signed the document did anybody translate the document for you? A. My attorney did explain it in detail. Q. Was it a word-for-word translation? A. I would ask about things that I did not understand. Q. Which attorney explained it to you? A. My attorney. Page 58 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 Q. What's his name? 2 A. Quinn. 3 Q. So it's this lawyer here, Quinn Chevalier? 4 A. Yes. 5 Q. Does Mr. Chevalier speak Chinese? 6 A. No. 7 Q. So he explained it to you in English? 8 A. Yes. 9 Q. Did anyone else explain what was in the 10 document or translate it for you, other than 11 Mr. Chevalier? 12 A. No. 13 Q. Was there any portion of the declaration that 14 Mr. Chevalier explained to you that you do not feel you 15 understood completely well before you signed it? 16 A. No. 17 Q. Please turn to the second page of Exhibit 6. 18 A. Okay. 19 Q. I will ask the translator to point to 20 paragraph 3 at line 5. And you will see there that 21 there is a reference to a company called Rai Kai, 22 spelled R-a-i, K-a-i, LLC. 23 Do you see that? 24 A. Yes. 25 Q. And attached to the declaration as the first Page 59 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG ~ 4/15/2011 encumbered the Third Street property until you received Exhibit 17; is that correct? A. Yes. Q. And when you got Exhibit 17, you saw that Exhibit 14 was in there? A. I don't know about this document (indicating), but I just saw the address in here (indicating). Q. Okay. So let's flip through to where you saw the address. I think you might find it on page 14 of the Complaint, paragraph 51. A. Yeah. Q. Do you read English well enough to read out loud the first two lines of paragraph 51? A. No. Q. So you saw the Third Street address in there, you could read that; is that what you're saying? A. Yes. Q. Did that seem significant to you? A. I gave this to my attorney and my attorney told me about this. Q. Okay. But my question to you is: When you read it for the first time, did the Third Street address seem significant to you? MR. CHEVALIER: I have to object. He's already said that he doesn't read. So when you say "When you Page 109 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 24 25 You learned that the bank had a deed of trust against your Third Street Property sometime after you were served with the lawsuit in June of —— in or about June of 2010; correct? A. Yes. Q. And did you believe that the bank had tricked you into signing the deed of trust? A. Yes. Q. Did you tell that to your lawyer? A. Yes. Q. Do you believe your lawyer understood you when you told him that? A. I think he understood. MR. RUSSAK: Let's take a break for a second. I want to chat with you for a moment. Off the record. (Recess was taken from 5:16 until 5:32.) MR. RUSSAK: Q. I'd like to turn your attention back to Exhibit 6, your declaration. And I will ask the translator to read to you Paragraphs 12 and 13 of the declaration. Mr. Zhang, are the statements in paragraphs 12 and 13 of your declaration, which is Exhibit 6, true and correct? A. 12 and 13? Page 112 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 Q. Yes. 2 A. I think that these two paragraphs are not that 3 correct. 4 Q. In what way are they incorrect? 5 A. We didn't know we had to provide the Third 6 Street as collateral. 7 Q. So why did you sign a declaration that included 8 this language? 9 A. Maybe there was some places where I and the 10 attorney did not quite understand each other. 11 Q. I want to draw your attention back to the day 12 on which you signed this declaration. It was the day 13 before the TRO hearing. 14 And you know what I mean by "TRO hearing," 15 don't you? 16 A. Yes. 17 Q. What do you understand the TRO hearing to be? 18 A. The restraining order. 19 Q. For the foreclosure? 20 A. Yes. 21 Q. Okay. How did you communicate with your lawyer 22 prior to the preparation of this declaration? Did you 23 sit down and have a meeting with him and talk with him 24 about the facts? 25 A. Yes. Page 113 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 24 25 Q. And when you had that conversation with him for the first time, was there already a draft declaration prepared that he had written first? A. Yes. Q. Before the draft declaration was prepared, did you have any discussions with him about the facts of your case? A. Yes. Q. And when did that conversation take place? A. Before -- One week before March 9th. Q. Did you have an in-person meeting with him? . Yes. Who else was present? Michael. Another lawyer? Yes. A Q A Q A Q. Somebody who works with Mr. Chevalier? A Yes. Q Would that be Michael Schinner? A Yes. Q. How do you know Mr. Schinner? A. Friend introduced us. MR. RAANAN: Before I forget: Bill, what's his last name? MS. RAANAN: Langdon. Page 114 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 MR. RUSSAK: Q. Bill Langdon, how did you meet 2 Mr. Langdon and how did he come to be working on your 3 project? 4 A. It also was a referral from a friend. 5 Q. But it was not a referral from the bank? 6 A. No. 7 Q. Okay. So you had a meeting with Mr. Schinner 8 and Mr. Chevalier, and you discussed the facts of your 9 case about a week before the TRO hearing; correct? 10 A. Yes. 11 Q. What did you tell them about the deed of trust 12 on the Third Street property? 13 A. I said I did not know that that was there. 14 Q. Did you tell them that you thought you had been 15 tricked into signing it? 16 A. Yes. 17 Q. Was anybody other than Mr. Schinner and 18 Mr. Chevalier with you in the meeting? 19 A. No. 20 Q. Your wife wasn't there, or your son? 21 A. No. 22 Q. So after your first meeting, your lawyers 23 prepared a draft declaration. And then you came back 24 later to review it and sign it maybe the day before the 25 hearing; is that right? Page 115 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 | 1 A. Yes. | 2 Q. What was the process by which you ~- Well, back | 3 up. | 4 Did you review the declaration before you ! 5 signed it? 6 A. I did not, because I cannot read it. | 7 Q. Did you spend time discussing your declaration 8 with your lawyers before you signed it? 9 A. Yes. : 10 Q. How much time did you spend with them doing 11 that task? 12 A. Around half an hour. 13 Q. And who was involved in that process at your 14 lawyer's law firm? 15 A. Quinn and Michael. 16 Q. Was anyone else present at that meeting? 17 A. No. 18 Q. Did they read each paragraph of the declaration 19 to you in English? 20 A. Yes. 21 Q. And did you understand at least as you -~- At 22 any time did you believe that you did not understand 23 what they were saying to you? 24 A. A little bit. 25 Q. In which instances? Do you recall any specific Page 116 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 areas where you thought you didn't understand them? 2 A. Every so often there would be something I did 3 not understand. 4 Q. Okay. But they read each and every paragraph 5 to you in English? 6 A. Yes. 7 Q. On the very last page of the document, of your 8 declaration, excuse me, page 6, the words are, on line 9 17, "I declare under penalty of perjury under the laws 10 of the State of California that the foregoing is true 11 and correct." 12 Do you see that language? 13 A. I didn't really know how to read it. I just 14 signed. 15 Q. No, did your lawyers read that particular 16 sentence to you? 17 A. They did. 18 Q. Did you understand what they said when they 19 read that sentence to you? 20 A. No. 21 Q Did you ask them to explain it to you? 22 A No. 23 Q. Why not? 24 A I trusted the attorney. 25 Q Do you understand what “penalty of perjury" Page 117 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 means? A. No. Q. In other instances where there was something that they read to you that you didn't understand, what did you do? A. If it's not that important, then it's just what it is. Q. But did you say anything to your lawyers if you did not understand a statement that they were reading to you? A. Yes. Q. And were any changes made to the draft after you started that meeting, the second meeting? A. I don't know. Q. I want to try to jog your memory just a little bit. Okay? It's possible that you got there and they presented you with a document; and as they read through the document to you, you might have interrupted them or corrected them at some point and said, “What you said about that thing is not quite right." Did anything like that happen? A. Yes, but when they read it again, sometimes I still did not understand. Q. But if you corrected them and said something is 800-826-0277 Page 118 Merrill Corporation - Los Angeles www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 MR. CHEVALIER: I have to object to that, 2 though. Because those phone numbers, given that those 3 ladies are so far removed from the parties here, that is 4 private, confidential. 5 MR. RUSSAK: Well, you're welcome to make that 6 objection. I will move to compel if you assert that in 7 any obstructive way. It is reasonably calculated to 8 lead to the discovery of admissible evidence: the 9 address and phone number of Dong Ying Qui. If the 10 witness wants to do his own investigation and, in lieu 11 of filling our that information, give us Dong Ying Qui's 12 updated contact information, that's all I need. But 13 failing that, I need the other phone numbers. 14 MR. CHEVALIER: All right. So, yeah, I mean, 15 leave the space. I'll probably do that if we can find 16 it. 17 MR. RUSSAK: I have to tell you, these are very 18 serious allegations of potential forgery in the deed of 19 trust, and I intend to investigate them fully and I will 20 not stand still for obstruction. 21 MR. CHEVALIER: Okay. 22 MR. RUSSAK: Q. Turn back to your declaration, 23 please, Exhibit 6. And if you'll turn to the fifth 24 page, and I'll ask the translator to read to you again 25 paragraph 21. I know we discussed it previously, but I Page 130 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 want to direct your attention to it again. 2 A. Could you read that again? 3 Q. I just want the translator to read to you 4 paragraph 21 and then I'll ask you a question about it. 5 A. Not so. 6 MR. RUSSAK: You read it to him? 7 THE INTERPRETER: Yeah, and he said, "Not so." 8 MR. RUSSAK: Q. And I think earlier in our 9 deposition today you said that that paragraph was not 10 completely accurate. My question to you is: What would 11 you change in that paragraph to make it accurate? 12 A. It's the bank did not give me any since the 13 last extension. 14 Q. Since the sixth extension agreement? 15 A. Yes. 16 Q. And that's Exhibit 13; correct? 17 A. Yeah. 18 Q. Has it given you any money since you executed 19 the fifth extension agreement, which is Exhibit 12? 20 A. Yes. 21 Q. When and how much? 22 A. I don't remember when and how much. 23 Q. After you signed Exhibit 13, you were told by 24 Nicholas Chung that the maturity date would be extended 25 to April 1, 2010; correct? Page 131 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawExhibit DFRANDZEL ROBINS BLOOM & CSATO, L.C. LAWYERS WWW. FRANDZEL.COM LOS ANGELES OFFICE SAN JOSE OFFICE 6500 WILSHIRE BOULEVARD 225 W. SANTA CLARA STREET SEVENTEENTH FLOOR SUITE 1500 LOS ANGELES, CALIFORNIA 90048-4920 SAN JOSE, CALIFORNIA 95113 TELEPHONE (323) 852-1000 TELEPHONE (408) 457-3696 FACSIMILE (323) 651-2577 Direct DiaL: (323) 658-0745 Our Fite # 023000-0790 E-MAIL: HRAANAN@FRANDZEL.COM REPLY To Los ANGELES August 29, 2012 VIA E-MAIL ON AUGUST 29, 2012 FACSIMILE AND U.S. MAIL ON AUGUST 30, 2012 Maureen McCuaig, Esq. CJH & Associates, P.C. 1440 Broadway, Suite 1000 Oakland, CA 94612 Facsimile: (510) 251-1155 Email: mmcuaig@cjhulaw.com Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 Dear Maureen: lam in receipt of your August 28, 2012 letter regarding "Notice of Deposition Subpoena for Production of Business Records to Quinn Chevalier." First, just to be clear, we served your office with the Notice to Consumer regarding our Subpoena for Production of Business Records directed at Quinn Chevalier. Your clients' rights regarding that subpoena, which has not yet been served on Mr. Chevalier, are set forth in the Notice to Consumer. With regards to your statement regarding attorney-client privilege and work-product doctrine, these privileges are absolute, unless they are waived. We contend that Raymond Zhang and his prior attorneys waived both the attorney-client privilege and work-product doctrine by answering specific questions regarding conversations he had with his attorneys and the content of those conversations during his deposition on April 15, 2011. Generally, a privilege for confidential communications is waived by the holder's voluntary disclosure, or consent to disclosure of a significant part of the communication. Evidence Code 912(a). A "significant part" means disclosure of enough substantive information as to reveal the specific content of the alleged confidential communication. Southern Calif. Gas Co. v. Public Util. Comm'n (1990) 50 Cal.3d 31, 46' Mitchell v, Sup.Ct. (Shell Oil Co.).(1984) 37 Cal.3d 591, 601-602; Julrik Productions, Inc. v. Chester (1974) 38 Cal.App.3d 807, 811 [attorney client privilege was waived as to a letter written by client to Attorney where the client testified on cross-examination as to the existence and content of the letter]. 1066681.1 joveans of SERVICEFRANOZEL ROBINS BLOOM & Csato, L.c. Maureen McCuaig, Esq. August 29, 2012 Page 2 Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 Chevalier of the Schinner Law Group. Mr. Zhang answered the questions and no objection was made on the grounds of attorney-client privilege. I have attached excerpts of his deposition which contain the waivers to this letter. As an example, Mr. Zhang was asked the following: Mr. Russak: Okay. So you had a meeting with Mr. Schinner and Mr. Chevalier, and you discussed the facts of your case about a week before the TRO hearing; correct? Raymond Zhang: Yes. Q: What did you tell them about the deed of trust on the Third Street property? A: I said I did not know that that was there. Q: Did you tell them that you thought you had been tricked into signing it? A: Yes. Raymond Zhang Deposition ("Zhang Depo") at 115:7-16. This is only one example of several in which Mr. Zhang was asked about specific conversations with his former attorneys, the Schinner Law Group, including how they had reviewed and determined the information to be included in his declarations and how they communicated regarding the facts of the case. Asa result, Mr. Zhang has waived the attorney-client privilege with regards to those communications. Furthermore, Mr. Zhang also testified that he had relied on the advice of his prior counsel in executing declarations which he admitted contained false information. As a result, he has placed the advice of his prior counsel at issue as to what he understood the true facts of the case to be at the time they prepared his declaration in support of the Application for Preliminary Injunction. Pursuant to the California Practice Guide: Professional Responsibility Section 7:356, “clients who seek to excuse or justify wrongful acts by claiming they relied on advice of counsel waive the attorney-client privilege as to communications and documents relating to the advice." Transamerica Title Ins. Co. v. Sup.Ct. (Bank of the West) (1987) 188 Cal.App.3d 1047, 1053. Additionally, Mr. Zhang has testified that he speaks very little English and reads no English, however he also testified in his deposition that he spoke to both Mssrs. Schinner and Chevalier in English, without the assistance of an interpreter, and that he reviewed documents related to the case written in English which had not been translated for him in Cantonese. Mr. Zhang has placed his language facility at issue in this case and, as a result of his testimony 106668 1.1FRANDZEL ROBINS BLOOM & Csato, L.c. Maureen McCuaig, Esq. August 29, 2012 Page 3 Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 regarding specific conversations with his prior counsel in English without the use of an interpreter, has also placed any information regarding his ability to communicate with non- Cantonese speaking former counsel at issue as well. With regards to work-product doctrine, Mr. Zhang also testified as to the method in which he and his attorneys reviewed and made changes to the Declaration, including the following: Q. Did you spend time discussing your declaration with your lawyers before your signed it? . Yes. . How much time did you spend with them doing that task? . Around half an hour. . Who was involved in that process at your lawyer's law firm? A Q A. Q A. Quinn and Michael. Q. Was anyone else present at that meeting? A. No. Q. Did they read each paragraph of the declaration to you in English? A. Yes. Q. And did you understand at least as you ~ At any time did you believe that you did not understand what they were saying to you? A. A little bit. Q. But did you say anything to your lawyers if you did not understand a statement that they were reading to you? A. Yes. 1066681.1FRANDZEL ROBINS BLOOM & CsaTo, L.c. Maureen McCuaig, Esq. August 29, 2012 Page 4 Re: Cathay Bank v. Raymond Zhang, et al., (and related cross-complaints), San Francisco Superior Court Case No. CGC-10-500934 Q. And were any changes made to the draft after you started that meeting, the second meeting? A. I don’t know. Zhang Depo at 116:7-118:14. This is also one example of several instances where Mr. Zhang testified regarding his process of reviewing the Declaration with his prior counsel and the contents of those discussions. No objection was every made, nor was Mr. Zhang instructed not to answer these questions. As a result he has waived any work-product protection regarding the Declaration. Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405, 411 ["The attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document."] As a result of Mr. Zhang's testimony, and prior counsel's failure to object or otherwise prevent the disclosure, both Mr. Zhang and his prior counsel have waived the work-product protection as to the Declaration. Based on the above and the attached deposition excerpts, the Bank will serve its Subpoena for Production of Business Records to Quinn Chevalier when the notice period on the Notice to Consumer expires. Please feel free to contact me directly to discuss this matter further. Please be advised that Kenneth N. Russak, the partner principally responsible for managing the litigation in this case is on vacation this week. He may comment further on the issues raised in your August 24, 2012 letter after his return on September 3, 2012. Very truly yours, IM & CSATO, L.C. FRANDZEL ROBINS B) / HANNA B. [AN HBR: cc: Michael Gerard Fletcher, Esq. Kenneth N. Russak, Esq. 1066681.)RAYMOND XIANG KAI ZHANG - 4/15/2011 1 place on March 10? 2 A. Yes. 3 Q. Did you sign any documents before that hearing, 4 to assist your lawyer in connection with that hearing? 5 A. Yes. 6 Q. Did you sign something that looks like 7 Exhibit 6? 8 A. Yes. 9 Q. What did you think you were signing when you 10 signed that document? 11 A. Signing something to stop them from 12 foreclosing. 13 Q. Did you understand that the document that you 14 were signing was written testimony from you that the 15 judge would consider in connection with the effort to 16 stop the foreclosure that your lawyer was undertaking? 17 A. Yes. 18 Q. And before you signed the document did anybody 19 translate the document for you? 20 A. My attorney did explain it in detail. 21 Q. Was it a word-for-word translation? 22 A. I would ask about things that I did not 23 understand. 24 Q. Which attorney explained it to you? 25 A. My attorney. Page 58 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 21 there 22 spell 1 Q. What's his name? 2 A. Quinn. 3 Q. So it's this lawyer here, Quinn Chevalier? 4 A. Yes. 5 Q. Does Mr. Chevalier speak Chinese? 6 A. No. 7 Q. So he explained it to you in English? 8 A. Yes. 9 Q. Did anyone else explain what was in the 10 document or translate it for you, other than 11 Mr. Chevalier? 12 A. No. 13 Q. Was there any portion of the declaration that 14 Mr. Chevalier explained to you that you do not feel you 15 understood completely well before you signed it? 16 A. No. 17 Q. Please turn to the second page of Exhibit 6. 18 A. Okay. 19 Q. I will ask the translator to point to 20 paragraph 3 at line 5. And you will see there that is a reference to a company called Rai Kai ed R-a-i, K-a-i, LLC. Do you see that? A. Yes. Q. And attached to the declaration as the first 800-826-0277 Page 59 Merrill Corporation - Los Angeles www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 won 24 25 encumbered the Third Street property until you received Exhibit 17; is that correct? A. Yes. Q. And when you got Exhibit 17, you saw that Exhibit 14 was in there? A. I don't know about this document (indicating), but I just saw the address in here (indicating). Q. Okay. So let's flip through to where you saw the address. I think you might find it on page 14 of the Complaint, paragraph 51. A. Yeah. Q. Do you read English well enough to read out loud the first two lines of paragraph 51? A. No. Q. So you saw the Third Street address in there, you could read that; is that what you're saying? A. Yes. Q. Did that seem significant to you? A. I gave this to my attorney and my attorney told me about this. Q. Okay. But my question to you is: When you read it for the first time, did the Third Street address seem significant to you? MR. CHEVALIER: I have to object. He's already said that he doesn't read. So when you say "When you Page 109 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 You learned that the bank had a deed of trust against your Third Street property sometime after you were served with the lawsuit in June of -- in or about June of 2010; correct? A. Yes. Q. And did you believe that the bank had tricked you into signing the deed of trust? A. Yes. Q. Did you tell that to your lawyer? A. Yes. Q. Do you believe your lawyer understood you when you told him that? A. I think he understood. MR. RUSSAK: Let's take a break for a second. I want to chat with you for a moment. Off the record. (Recess was taken from 5:16 until 5:32.) MR. RUSSAK: Q. I'd like to turn your attention back to Exhibit 6, your declaration. And I will ask the translator to read to you paragraphs 12 and 13 of the declaration. Mr. Zhang, are the statements in paragraphs 12 and 13 of your declaration, which is Exhibit 6, true and correct? A. 12 and 13? 800-826-0277 Page 112 Merrill Corporation - Los Angeles www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 Q. Yes. 2 A. I think that these two paragraphs are not that 3 correct. 4 Q. %In what way are they incorrect? 5 A. We didn't know we had to provide the Third 6 Street as collateral. 7 Q. So why did you sign a declaration that included 8 this language? 9 A. Maybe there was some places where I and the 10 attorney did not quite understand each other. 11 Q. I want to draw your attention back to the day 12 on which you signed this declaration. It was the day 13 before the TRO hearing. 14 And you know what I mean by "TRO hearing," 15 don't you? 16 A. Yes. 17 Q. What do you understand the TRO hearing to be? 18 A. The restraining order. 19 Q. For the foreclosure? 20 A. Yes. 21 Q. Okay. How did you communicate with your lawyer 22 prior to the preparation of this declaration? Did you 23 sit down and have a meeting with him and talk with him 24 about the facts? 25 A. Yes. Page 113 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 Q. And when you had that conversation with him for 2 the first time, was there already a draft declaration 3 prepared that he had written first? 4 A. Yes. 5 Q. Before the draft declaration was prepared, did 6 you have any discussions with him about the facts of 7 your case? 8 A. Yes. 9 Q. And when did that conversation take place? 10 A. Before -- One week before March 9th. 11 Q. Did you have an in-person meeting with him? 12 A Yes. 13 Q. Who else was present? 14 A. Michael. 15 Q. Another lawyer? 16 A. Yes. 17 Q. Somebody who works with Mr. Chevalier? 18 A. Yes. 19 Q. Would that be Michael Schinner? 20 A. Yes. 21 Q. How do you know Mr. Schinner? 22 A. Friend introduced us. 23 MR. RAANAN: Before I forget: Bill, what's his 24 last name? 25 MS. RAANAN: Langdon. Page 114 Merrill Corporation -~ Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 MR. RUSSAK: Q. Bill Langdon, how did you meet 2 Mr. Langdon and how did he come to be working on your 3 project? 4 A. It also was a referral from a friend. 5 Q. But it was not a referral from the bank? 6 A. No. 7 Q. Okay. So you had a meeting with Mr. Schinner 8 and Mr. Chevalier, and you discussed the facts of your 9 case about a week before the TRO hearing; correct? 10 A. Yes. ll Q. What did you tell them about the deed of trust 12 on the Third Street property? 13 A. I said I did not know that that was there. 14 Q. Did you tell them that you thought you had been 15 tricked into signing it? 16 A. Yes, 17 Q. Was anybody other than Mr. Schinner and 18 Mr. Chevalier with you in the meeting? 19 A. No. 20 Q. Your wife wasn't there, or your son? 21 A. No. 22 Q. So after your first meeting, your lawyers 23 prepared a draft declaration. And then you came back 24 later to review it and sign it maybe the day before the 25 hearing; is that right? Page 115 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 A. Yes. Q. What was the process by which you -~ Well, back up. Did you review the declaration before you signed it? , A. I did not, because I cannot read it. Q. Did you spend time discussing your declaration with your lawyers before you signed it? A. Yes. Q. How much time did you spend with them doing that task? A. Around half an hour. Q. And who was involved in that process at your lawyer's law firm? A. Quinn and Michael. Q. Was anyone else present at that meeting? A. No. Q. Did théy read each paragraph of the declaration to you in English? A. Yes. Q. And did you understand at least as you -- At any time did you believe that you did not understand what they were saying to you? A. A little bit. Q. In which instances? Do you recall any specific Page 116 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG ~ 4/15/2011 areas where you thought you didn't understand them? A. Every so often there would be something I did not understand. Q. Okay. But they read each and every paragraph to you in English? A. Yes. Q. On the very last page of the document, of your declaration, excuse me, page 6, the words are, on line 17, "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct." Do you see that language? A. I didn't really know how to read it. I just signed. Q. No, did your lawyers read that particular sentence to you? A. They did. Q. Did you understand what they said when they read that sentence to you? A. No. Q. Did you ask them to explain it to you? A. No. Q. Why not? A. I trusted the attorney. Q. Do you understand what "penalty of perjury" Page 117 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 won means? A. No. Q. In other instances where there was something that they read to you that you didn't understand, what did you do? A. If it's not that important, then it's just what it is. Q. But did you say anything to your lawyers if you did not understand a statement that they were reading to you? : A. Yes. Q. And were any changes made to the draft after you started that meeting, the second meeting? A. I don't know. Q. I want to try to jog your memory just a little bit. Okay? It's possible that you got there and they presented you with a document; and as they read through the document to you, you might have interrupted them or corrected them at some point and said, "What you said about that thing is not quite right." Did anything like that happen? A. Yes, but when they read it again, sometimes I still did not understand. Q. But if you corrected them and said something is Page 118 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 MR. CHEVALIER: I have to object to that, 2 though. Because those phone numbers, given that those 3 ladies are so far removed from the parties here, that is 4 private, confidential. 5 MR. RUSSAK: Well, you're welcome to make that 6 objection. I will move to compel if you assert that in 7 any obstructive way. It is reasonably calculated to 8 lead to the discovery of admissible evidence: the 9 address and phone number of Dong Ying Qui. If the 10 witness wants to do his own investigation and, in lieu 11 of filling our that information, give us Dong Ying Qui's 12 updated contact information, that's all I need. But 13 failing that, I need the other phone numbers. 14 MR. CHEVALIER: All right. So, yeah, I mean, 15 leave the space. I'll probably do that if we can find 16 it. 17 MR. RUSSAK: I have to tell you, these are very 18 serious allegations of potential forgery in the deed of 19 trust, and I intend to investigate them fully and I will 20 not stand still for obstruction. 21 MR. CHEVALIER: Okay. 22 MR. RUSSAK: Q. Turn back to your declaration, 23 Please, Exhibit 6. And if you'll turn to the fifth 24 page, and I'll ask the translator to read to you again 25 Paragraph 21. I know we discussed it previously, but I Page 130 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawRAYMOND XIANG KAI ZHANG - 4/15/2011 1 want to direct your attention to it again. 2 A. Could you read that again? 3 Q. I just want the translator to read to you 4 Paragraph 21 and then I'll ask you a question about it. 5 A. Not so. 6 . MR. RUSSAK: You read it to him? 7 THE INTERPRETER: Yeah, and he said, "Not so." 8 MR. RUSSAK: Q. And I think earlier in our 9 deposition today you said that that paragraph was not 10 completely accurate. My question to you is: What would ll you change in that paragraph to make it accurate? 12 A. It's the bank did not give me any since the 13 last extension. 14 Q. Since the sixth extension agreement? is A. Yes. 16 Q. And that's Exhibit 13; correct? 17 A. Yeah. 18 Q. Has it given you any money since you executed 19 the fifth extension agreement, which is Exhibit 12? 20 A. Yes. 21 Q. When and how much? 22 A. I don't remember when and how much. 23 Q. After you signed Exhibit 13, you were told by 24 Nicholas Chung that the maturity date would be extended 25 to April 1, 2010; correct? Page 131 Merrill Corporation - Los Angeles 800-826-0277 www.merrillcorp.com/lawExhibit EMaureen McCuaig _ From: Maureen McCuaig [mmccuaig