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  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
  • Estate of  JANET LIN HUANGDecedent's Estate document preview
						
                                

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1 JONATHAN D. WOLF, CA STATE BAR NO. 127043 LEILA N. SOCKOLOV, CA STATE BAR NO. 282946 2 BERLINER COHEN, LLP TEN ALMADEN BOULEVARD 9/4/2020 3:49 PM 3 ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 4 TELEPHONE: (408) 286-5800 FACSIMILE: (408) 998-5388 5 jonathan.wolf@berliner.com leila.sockolov@berliner.com 6 ATTORNEYS FOR PETITIONER AND RESPONDENT 7 JESSIE HUANG 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO 9 10 In Re: CASE NO. 16PRO00562 11 THE ESTATE OF JANET LIN HUANG, aka MEMORANDUM OF POINTS AND 12 YUEH YU LIN HUANG, AUTHORITIES IN REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 13 Deceased. Date: September 10, 2020 14 Time: 9:00 a.m. Dept.: 28 15 Judge: Hon. George Miram Trial Date: October 13, 2020 16 17 18 19 20 21 22 23 24 25 26 27 28 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION........................................................................................................... 1 4 II. ARGUMENT .................................................................................................................. 1 5 A. Yumi Fails to Rebut the Dispositive Issues of whether California Law Applies and whether the Waiver is Valid Under It. ................................................ 1 6 1. The Facts Relevant to the Question of whether California Law 7 Applies and the Validity of the Taiwan Waiver under It Are Undisputed. .............................................................................................. 1 8 2. Yumi Also May Not Avoid Summary Judgment by Relying on 9 Alleged New Facts and Theories Outside the Scope of the Pleadings. ................................................................................................. 4 10 3. On the Undisputed Facts, California Law Applies...................................... 5 11 4. Taiwan Law Does Not Apply to the Validity of the Waiver under 12 Principles of Comity or Otherwise. ........................................................... 6 13 5. The Governmental Interest Approach to the Choice-of-Law Issue Favors the Application of California Law. ................................................. 8 14 B. The Taiwan Waiver is Invalid under California Law. ............................................ 9 15 C. The Doctrine of Judicial Estoppel is Inapplicable. ............................................... 10 16 III. CONCLUSION ............................................................................................................. 10 17 18 19 20 21 22 23 24 25 26 27 28 -i- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES 2 Page 3 Cases 4 Advanced Micro Devices, Inc. v. Great American Surplus Lines Insurance Co. (1999) 199 Cal.App.3d 791.................................................................................................... 3 5 Benavidez v. San Jose Police Department 6 (1999) 71 Cal.App.4th 853 .................................................................................................... 3 7 Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263................................................................................................. 5 8 Frontier Oil Corp. v. RLI Ins. Co. 9 (2007) 153 Cal.App.4th 1436................................................................................................. 6 10 In re Stephanie M. (1994) 7 Cal.4th 295 .......................................................................................................... 6, 7 11 International Engine Parts v. Feddersen & Co. 12 (1995) 9 Cal.4th 606 .............................................................................................................. 3 13 Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438 .................................................................................................... 4 14 Juge v. County of Sacramento 15 (1993) 16 Cal.App.4th 59 ...................................................................................................... 6 16 Manco Contracting Co. (W.L.L.) v Bezdikian (2008) 45 Cal.4th 192 ............................................................................................................ 8 17 Preach v. Monter Rainbow 18 (1993) 12 Cal.App 4th 1441................................................................................................... 3 19 Scott v. Ford Motor Co. (2014) 224 Cal.App.4th 1492................................................................................................. 3 20 Statutes 21 Civil Code section 1646 .............................................................................................................. 6 22 Civil Code section 755 ............................................................................................................ 6, 7 23 Evidence Code section 454 .......................................................................................................... 8 24 Evidence Code section 454(a)(1) ................................................................................................. 8 25 Evidence Code section 454(b) ..................................................................................................... 8 26 Evidence Code section 455(a)...................................................................................................... 8 27 Probate Code section 278 .....................................................................................................4, 6, 9 28 Probate Code section 279 .....................................................................................................4, 6, 9 -ii- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 Probate Code section 288 ........................................................................................................ 6, 7 2 Uniform Child Custody Jurisdiction Act California Family Code section 3400 ..................................................................................... 6 3 Other Authorities 4 Rest.4th, Foreign Relations of the United States 5 section 485 ........................................................................................................................... 7 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 I. INTRODUCTION 2 In opposition to Jessie’s motion for summary judgment, Yumi is unable to raise a triable 3 issue as to the three undisputed facts that she attempts to dispute. Nor may she rely on purported 4 new facts and theories outside the scope of the pleadings—such as judicial estoppel and comity— 5 to defeat summary judgment, as she attempts to do. Therefore, the dispositive facts are undisputed. 6 On those undisputed facts, California law applies to invalidate the Taiwan Waiver with respect to 7 any interest in the Estate at issue in this proceeding. The Probate Code expressly commands that 8 its requirements respecting inheritance disclaimers are exclusive, and the Taiwan disclaimer is 9 inadequate under those requirements. Application of the governmental interest test confirms that 10 California law governs here. 11 The theories on which Yumi bases her defenses to this motion, comity and judicial 12 estoppel, would fail even if the Court could entertain them. Although Yumi argues that, as a 13 matter of comity, the Court should enforce the Taiwan Waiver, the courts may not enforce 14 purported foreign decrees where, as here, doing so would violate California laws and contravene 15 the policies underlying those laws. Otherwise, Yumi points to no treaty or statute that requires 16 California courts to recognize the validity of a Taiwanese inheritance disclaimer, or to accept a 17 decision of the Taiwan courts that is on appeal in Taiwan. Nor does she cite to any case law or 18 other authority allowing a California court to apply foreign law in the face of California statutes 19 that expressly provide that California law governs the matters in dispute. Finally, Yumi’s claim 20 that Jessie should be judicially estopped from asserting the invalidity of the Taiwan Waiver in 21 California fails because the elements of that doctrine cannot be met. 22 Because on the undisputed facts, Jessie is entitled to judgment as a matter of law, the Court 23 should grant Jessie’s motion for summary judgment. 24 II. ARGUMENT 25 A. Yumi Fails to Rebut the Dispositive Issues of whether California Law Applies and whether the Waiver is Valid Under It. 26 1. The Facts Relevant to the Question of whether California Law Applies and 27 the Validity of the Taiwan Waiver under It Are Undisputed. 28 Yumi attempts to dispute only three facts that Jessie submits are undisputed, whether (1) -1- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 the Taiwan Waiver does not describe the interest to be disclaimed or state the disclaimer and extent 2 of the disclaimer; (2) the Taiwan Waiver is not a judgment or order of the Taiwan court; and (3) 3 there is currently an action pending in Taiwan filed by Jessie to set aside the Taiwan Waiver on the 4 basis of extrinsic fraud in which there is not a final decision. (Yumi Separate Statement, pp. 4-5, 5 Undisputed Facts Nos. 8, 9, & 11.) However, the evidence Yumi provides fails to raise a triable 6 issue as to these facts. And, even had Yumi placed these facts in dispute, her doing so would not 7 alter the resolution of the dispositive but purely legal questions Jessie raises in her motion: (1) 8 does California law apply, and (2) if so, is the Taiwan Waiver is valid under that law? 9 Yumi first claims to dispute that the Taiwan Waiver does not describe the interest to be 10 disclaimed or the extent of the disclaimer. (Yumi Separate Statement, Undisputed Fact No. 8.) She 11 asserts that under Taiwan law an inheritance waiver operates worldwide, that Jessie knew this to be 12 the case, and that the lower Taiwan court has found against her in the Taiwan action. (Id. at pp. 6- 13 8.) But none of these allegations would affect the plain terms of the Taiwan Waiver; whether the 14 waiver is adequate under Section 278 is apparent from the face of the waiver.1 15 Yumi next attempts to dispute that the Taiwan Waiver is not a judgment or order of the 16 Taiwan court (Undisputed Fact No. 9) by referring to purported records of the Taiwan court which 17 she asserts “granted recording of” and “confirmed” the Taiwan Waiver. (Yumi Separate 18 Statement, pp. 4, 6.) She also claims that after hearing evidence and argument the Taiwan court 19 rejected Jessie’s contentions. (Id. at p. 8.) However, the purported Taiwan court records are 20 inadmissible. (See Jessie’s Objections.) Also, the lower Taiwan court’s ruling in the pending 21 action, which is on appeal, does not purport to turn the Taiwan Waiver itself into a judgment or 22 order, much less one that is effective worldwide. Moreover, Yumi’s own expert testified in 23 deposition that an inheritance waiver is not a judgment and any purported action based on its 24 submission to the court is merely recognition that a party signed a waiver of inheritance, not a 25 judicial approval of the waiver. (Declaration of Angela Hoffman in Reply to Opposition to Motion 26 for Summary Judgment, Exh. A, at pp. 48, 53.) A party cannot create an issue of fact by a 27 1 28 Although the points are not material to this motion, Jessie denies that an inheritance waiver operates worldwide under Taiwan law or that she knew or was told this to be the case. -2- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 declaration that contradicts prior discovery responses. (Benavidez v. San Jose Police Department 2 (1999) 71 Cal.App.4th 853, 860.) “In reviewing motions for summary judgment, the courts have 3 long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or 4 evasive.” (Advanced Micro Devices, Inc. v. Great American Surplus Lines Insurance Co. (1999) 5 199 Cal.App.3d 791, 800.) The rule applies equally to a conflict between the affidavit and the 6 deposition testimony of a single witness. (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 7 1451.) Her own expert’s testimony to the contrary precludes Yumi’s effort to manufacture a 8 triable issue of fact as to whether the Taiwan Waiver is a judgment or whether there is any 9 significance to its “recording” or “confirmation.” 10 Finally, Yumi purports to dispute that there is not a final decision in the currently pending 11 Taiwan proceeding to set aside the Taiwan Waiver on the basis of extrinsic fraud. (Yumi Separate 12 Statement, Undisputed Fact No. 11.) She points to the Taiwan lower court’s decision and asserts 13 that because of that ruling the Taiwan Waiver remains in effect. (Yumi Separate Statement, pp. 5, 14 8.) But nowhere does Yumi show that, although the Taiwan lower court’s decision is on appeal, 15 there is a final decision in that action. In fact, under Taiwan law lower court rulings are not 16 binding or final while an appeal is ongoing. (Heather Hsiao Decl. at ¶ 4.) 17 Thus, Yumi fails to establish a triable issue as to the only three undisputed facts she 18 challenges. But even if these facts were in dispute, the Court should still grant summary judgment 19 because the dispute would not affect whether California law applies in this proceeding and, if so, 20 whether the Taiwan Waiver is valid under it. First, the dispute would bear on Yumi’s claim that 21 the Court should enforce the alleged extraterritorial effect of the Taiwan Waiver under Taiwan law 22 as a matter of comity. However, as discussed in Section II(A)(4), below, a court may not enforce a 23 foreign judgment or order as a matter of comity where to do so would violate California laws or the 24 policies underlying them. Second, the resolution of conflicts of laws issues—here, whether 25 California law applies to the validity of the Taiwan disclaimer--is a pure question of law. (Scott v. 26 Ford Motor Co. (2014) 224 Cal.App.4th 1492, 1503.) Likewise, the application of a statute to 27 undisputed facts is a question of law. (International Engine Parts v. Feddersen & Co. (1995) 9 28 Cal.4th 606, 611). There is no dispute about what the Taiwan Waiver says, even if the parties -3- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 disagree as to its effect under Taiwan law. And even assuming, arguendo, the Taiwan Waiver 2 were effective worldwide under Taiwan law—which it is not—whether, under Probate Code 3 sections 278 and 279, the Taiwan Waiver would constitute a valid disclaimer as to property of a 4 California estate remains a question of law, unaffected by the facts Yumi attempts to dispute. 2 5 Therefore, Yumi has failed to establish a triable issue as to the facts relevant to whether 6 California law applies to the Taiwan Waiver and if so, whether the waiver is valid under it. 7 2. Yumi Also May Not Avoid Summary Judgment by Relying on Alleged 8 New Facts and Theories Outside the Scope of the Pleadings. 9 Apart from unsuccessfully attempting to dispute several of the facts that Jessie offers as 10 undisputed, Yumi points to a number of new purported facts, ostensibly in support of her 11 contentions that the Taiwan Waiver should be enforced in California as a matter of comity and that 12 Jessie should be judicially estopped from denying its effect to disclaim California property. 13 However, the purported additional facts are red herrings. Because, as noted, the issue of whether 14 California law applies and whether the Taiwan Waiver is valid under it are pure questions of law, 15 they would not affect the resolution of the dispositive questions here. Moreover, they are also 16 largely unsupported by admissible evidence. (See Jessie’s Objections.) 17 In addition, a number of the additional facts, as well as Yumi’s claims of comity and 18 judicial estoppel the facts appear offered to support, are not cognizable in this motion because they 19 are beyond the scope of the pleadings. Because the pleadings define the scope of summary 20 judgment, “a party may not oppose a summary judgment motion based on a claim, theory, or 21 defense that is not alleged in the pleadings, and evidence offered on an unpleaded claim, theory, or 22 defense is irrelevant because it is outside the scope of the pleadings.” (Jacobs v. Coldwell Banker 23 Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444, internal quotation marks omitted.) 24 Therefore, “[a] moving party seeking summary judgment or adjudication is not required to go 25 beyond the allegations of the pleading, with respect to new theories that could have been pled, but 26 for which no motion to amend or supplement the pleading was brought, prior to the hearing on the 27 dispositive motion.” (Ibid.) 28 2 Unless otherwise indicated, subsequent statutory references are to the Probate Code. -4- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 In her October 23, 2017 Petition, Yumi alleges that, by executing the Taiwan Waiver, 2 Jessie and their brother disclaimed the entirety of the Decedent’s California Estate. (RJN, Exh. D 3 at ¶¶ 8-9.) She further alleges that “it will be necessary to determine the effect of Jessie’s 4 execution of a waiver of interest in the Decedent’s estate that has been filed with the [Taiwan 5 court].” Yumi also alleges that the Taiwan Waiver applies worldwide, including in this Estate, and 6 that Jessie was told and understood that the Taiwan Waiver would apply to this Estate. In her 7 Petition, however, Yumi does not invoke the doctrine of comity as grounds to deny the 8 applicability of California law to the Taiwan Waiver, asserting simply that the Taiwan Waiver 9 operates worldwide directly. Nor does she allege the defense of judicial estoppel, or those of the 10 additional allegations that she now appears to offer to support that defense, such as (1) Yumi’s 11 representation of the Decedent in the U.S. Tax Court, (2) the purported seizure of her assets, (3) 12 that Jessie and her brother allegedly knew her mother had guaranteed loans, and (4) that Jessie had 13 filed a petition to recognize her Taiwan marriage as valid under California law. (Yumi Separate 14 Statement, pp. 7-9.) Since the doctrine of comity and certainly the defense of judicial estoppel are 15 outside the scope of the pleadings, the Court should not entertain them as bases to deny summary 16 judgment. Nor should the Court consider the purported additional facts that Yumi offers to support 17 Yumi’s unalleged theories. In any event, the additional alleged facts, many of which Jessie 18 disputes,3 are not material to this motion. 19 Yumi has not formally sought leave to amend her Petition to allege comity or judicial 20 estoppel, but the Court should deny such a request because Yumi has long known of the facts on 21 which she would base those claims. (See Falcon v. Long Beach Genetics, Inc. (2014) 224 22 Cal.App.4th 1263, 1280 [unfair to allow plaintiffs to defeat summary judgment motion by allowing 23 them to present an amended pleading based on facts of which they had been aware].) 24 3. On the Undisputed Facts, California Law Applies. 25 Because the relevant facts are undisputed, the Court next must determine whether, on those 26 facts, Jessie is entitled to judgment as a matter of law. (See Juge v. County of Sacramento (1993) 27 3 For example, the suggestions of Yumi’s Taiwan lawyer that the Taiwan court confirmed the worldwide effect of the 28 Taiwan Waiver are contradicted by Yumi’s own uncertified translation of that ruling, which contains no such finding. (See Jessie’s Response to Yumi’s Separate Statement re additional fact nos. 13-14.) -5- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 16 Cal.App.4th 59, 66 [summary judgment properly granted where no triable issue of fact and the 2 moving party is entitled to prevail as a matter of law].) As Jessie showed in her opening 3 memorandum, California law applies to the validity of the Taiwan Waiver as to the Estate at issue 4 in this California proceeding. Again, where, as here, a California statute specifies the governing 5 law, the statute is followed. (See Frontier Oil Corp. v. RLI Ins. Co. (2007) 153 Cal.App.4th 1436, 6 1459-60 [applying Civ. Code, § 1646].) Section 288 provides that the Probate Code’s provisions 7 regarding disclaimers are exclusive. In her opposition, Yumi does not mention Section 288; nor 8 does she dispute the Taiwan Waiver is a disclaimer under California law. 9 Similarly, Civil Code section 755 commands that California law apply to the California 10 land that comprises nearly all of the estate at issue here. 11 Because California statutes expressly provide that California law applies to the validity of 12 inheritance disclaimers and real property in California, this Court must determine the validity of 13 the Taiwan Waiver under Sections 278 and 279. 14 4. Taiwan Law Does Not Apply to the Validity of the Waiver under Principles 15 of Comity or Otherwise. 16 As she does in her opposition to Jessie’s motion for judgment on the pleadings, Yumi tries 17 to displace California law with what she wrongly claims to be the law of Taiwan by resort to 18 considerations of comity. (Opposition, pp. 12-15.) However, principles of comity cannot apply to 19 effectively invalidate clear, contrary California statutory law and policy. 20 In In re Stephanie M. (1994) 7 Cal.4th 295, 314, the California Supreme Court reversed an 21 appellate court’s ruling effectively enforcing a Mexican guardianship decree purporting to 22 authorize the named guardian to take custody of a child and to return her to Mexico. (Id. at pp. 23 313-314, 326.) It did so in part because the Mexican decree conflicted with California’s public 24 policy, embodied in the Uniform Child Custody Jurisdiction Act, Cal. Fam. Code § 3400 et seq., 25 that California courts will exercise exclusive continuing jurisdiction over certain child custody 26 matters. (Id. at pp. 313-315.) Thus, California courts will not enforce foreign decrees as a matter 27 of comity where to do so would violate California statutes or policies underlying them. 28 That is the case here. Applying Taiwan law to the issue of whether the Taiwan Waiver is -6- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 valid as to Estate property would violate Section 288 and contravene the policies underlying 2 California’s disclaimer statutes. Under Section 288, the disclaimer requirements of Sections 278 3 and 279, are exclusive. (§ 288.) Section 288 thus precludes the application of contrary foreign 4 law, under the doctrine of comity or otherwise. 5 Likewise, applying Taiwan law would be contrary to Civil Code section 755’s dictate that 6 California real property is to be governed by California law. In her opposition to Jessie’s motion 7 for judgment on the pleadings, Yumi suggests that Taiwan law would not undercut Civil Code 8 section 755. (Yumi MJP Opposition, p. 13.) However, as Jessie explained in her reply to that 9 motion, neither case on which Yumi relied to support that contention confronted the issue of 10 whether, under principles of comity, foreign law may control the disposition of California real 11 property, contrary to the clear command of Civil Code section 755. (Jessie MJP Reply, pp. 3-4.) 12 Moreover, in this case, title to California real property will be directly affected by the 13 court’s resolution of this dispute and its issuance of a decree of distribution. Hence, the result is 14 not simply a matter of concern to the parties or existing creditors. Later purchasers, creditors, and 15 interest holders will rely on title to Estate property as this Court determines it. Civil Code section 16 755 gives force to California’s strong interest in preserving and properly transmitting clear title of 17 record to California real property by ensuring that title to such real property does not depend on the 18 resolution of complex or potentially disputed issues of unfamiliar foreign law. 19 Significantly, Yumi points to no treaty or statute that requires California courts to recognize 20 the validity of a Taiwanese inheritance disclaimer, or to accept a decision of the Taiwan courts that 21 is on appeal in Taiwan, over California law. Nor does she cite to any case law or other authority 22 allowing California court to apply foreign law in the face of California statutes that expressly 23 provide that California law governs the matter in dispute. 24 In any event, the party seeking recognition of a foreign judgment must establish a prima 25 facie case for such recognition. (Rest.4th, Foreign Relations of the United States § 485.) Yumi 26 cannot do so. Because the Taiwan Waiver is not a judgment or order (RJN, Exh. F at ¶ 15; Exh. A 27 to Hoffman Decl. at p. 53), it is not entitled recognition under principles of comity. In re Stephanie 28 M., supra, 7 Cal.4th at p. 314 [doctrine of comity prescribes that a court of this nation may -7- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 recognize the judgment of a court of a foreign nation].) Yumi also fails to show that, while on 2 appeal, the Taiwan judgment is conclusive; hence, she fails to meet her burden of showing that this 3 Court may enforce it as a matter of comity at all. California courts look to the foreign 4 jurisdiction’s law to assess the finality and conclusiveness of a money judgment rendered there. 5 (Manco Contracting Co. (W.L.L.) v Bezdikian (2008) 45 Cal.4th 192, 201-203.) Thus, when a 6 foreign jurisdiction does not consider a judgment to be final and conclusive while on appeal, that 7 judgment is not final for purposes of enforcement. (Id. at p. 195-196, 204.) Yumi has not disputed 8 that under Taiwan law lower court rulings are not considered binding or final while an appeal is 9 ongoing. (H. Hsiao Decl. at ¶ 4.) 4 10 5. The Governmental Interest Approach to the Choice-of-Law Issue Favors the 11 Application of California Law. 12 Yumi argues that Taiwan law should apply under a conflict of laws analysis. (MSJ 13 Opposition, p. 10.) As shown in Jessie’s reply to the motion for judgment on the pleadings, 14 Yumi’s analysis under the government interest test is incomplete and flawed. (MJP Reply, pp. 5- 15 6.) Yumi does not dispute that the laws of California and Taiwan differ with regard to the 16 substantive requirements of a valid disclaimer. Moreover, California has a strong interest in 17 applying its own law both to questions concerning entitlement to California real property as well as 18 to whether the requirements of a valid inheritance disclaimer—intended to protect and provide 19 certainty to heirs, beneficiaries, creditors, and anyone else who may deal with estate property—are 20 met. (See Opening Memorandum, pp. 9-11.) Taiwan has no interest in having its own law applied 21 to California property in this California probate proceeding, but even if it did, California’s interests 22 would be more impaired. 23 Therefore, whether because California specifies the governing law by statute or under the 24 governmental interest test, the Court should apply California law. As next shown, the Taiwan 25 4 Evidence Code section 454, subdivision (a)(1) permits a court to rely upon “advice of persons learned in the subject 26 matter” to determine the law of the foreign nation, and the advice may be written. (Evid. Code, § 454, subd. (a)(1) & (b).) When a party requests judicial notice of foreign law, the court “shall afford each party reasonable opportunity … 27 to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.” (Evid. Code, § 455, subd. (a).) Moreover, Code of Civil Procedure section 2034.300, 28 pertaining to experts testifying at trial, is inapplicable to law and motion matters. Hence, Jessie may properly request judicial notice of “advice of persons learned” in Taiwanese law under Evidence Code section 454. -8- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 Waiver is invalid under Sections 278 and 279. 2 B. The Taiwan Waiver is Invalid under California Law. 3 Sections 278 sets forth the required contents of disclaimers: a disclaimer must be in 4 writing, signed by the disclaimant, and (a) identify the creator of the interest, (b) describe the 5 interest to be disclaimed, and (c) state the disclaimer and the extent of the disclaimer. To be 6 effective, a disclaimer must be filed within a reasonable time after the person able to disclaim 7 acquires knowledge of the interest. (§ 279.) Yumi argues the Taiwan Waiver meets these 8 requirements because it broadly states that Jessie “voluntarily waives her inheritance rights.” 9 (Opposition, pp. 17-18.) But the Taiwan Waiver does not identify the creator of the interests being 10 disclaimed. Nor does it even identify any specific property or interest in property. The obvious 11 purposes of Section 278’s requirement that a disclaimer set forth the precise interest disclaimed are 12 to afford certainty to the scope of a disclaimer for the benefit of those whom it will affect or who 13 will rely on it, and to bring home to the disclaiming party exactly what is being disclaimed. 14 Further, Section 278’s requirements are meant to protect against the very situation we have here— 15 a broad, ambiguous waiver being unscrupulously used to disinherit an unsuspecting heir. A broad 16 statement that an heir is waiving his or her inheritance rights does not satisfy Section 278’s 17 requirements because it does not describe any interest in property purportedly being disclaimed, or 18 in what property an interest is being disclaimed, or the creator of that interest. The Decedent had 19 property in Taiwan, California, and Nevada (see Opposition, p. 16), but the Taiwan Waiver leaves 20 it uncertain what interests in what property are purportedly relinquished. 21 In addition, Section 279 provides that, to be effective, a disclaimer must be filed within a 22 reasonable time after the person acquires knowledge of the interest. It is undisputed the Taiwan 23 Waiver was not filed in a California court until more than four years after Jessie executed the 24 Taiwan Waiver. (See RJN, Exh A.) Although Yumi claims the Taiwan Waiver was “filed” under 25 Section 279 when it was given to her years earlier (MSP Opposition, p. 18), Section 279 26 unequivocally requires that a disclaimer be filed within a reasonable time to be effective. Because 27 no reasonable person could conclude that more than four years is a reasonable time, the Taiwan 28 Waiver is also ineffective under Section 279. -9- 4826-8584-8777v1 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO TPM\26932001 MOTION FOR SUMMARY JUDGMENT 1 C. The Doctrine of Judicial Estoppel is Inapplicable. 2 Yumi argues that the doctrine of judicial estoppel prevents Jessie from disputing the 3 validity of the Taiwan waiver or that it is effective to disclaim California property. (MSJ 4 Opposition, pp. 7-8.) As shown, Yumi may not defeat summary judgment with this unpleaded 5 defense