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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
3 ELEVENTH FLOOR 9/4/2020 3:49 PM
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 JESSIE HUANG’S OPPOSITION TO YUMI
YUEH YU LIN HUANG, HUANG’S OBJECTIONS TO JESSIE
12 HUANG’S EVIDENCE SUBMITTED IN
Deceased.
13 SUPPORT OF MOTION FOR SUMMARY
JUDGMENT
14
Date: September 10, 2020
15 Time: 9:00 a.m.
Dept.: 28
16 Judge: Hon. George Miram
Trial Date: October 13, 2020
17
18
Petitioner/Respondent Jessie Huang (“Jessie”) responds to Respondent/Petitioner Yumi
19
Huang’s Objections to Evidence Submitted in Support of Jessie Huang’s Motion for Summary
20
Judgment on Yumi Huang’s October 23, 2017 Petition.
21
Objection No. 1
22
Material Objected to: The March 4, 2020 Report of Dr. Yao-Ming Hsu in its entirety.
23
Grounds for Objection: Undisclosed Expert Witness (Code Civ. Proc. § 2034.300; Perry
24
v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 538 (“we hold that when the court determines
25
an expert opinion is inadmissible because disclosure requirements were not met, the opinion must
26
be excluded from consideration at summary judgment if an objection is raised.”); Failure to seek
27
leave to augment or amend expert witness disclosure or comply with requirements for same (Code
28
Civ. Proc. § 2034.720); Failure of examination upon bases of opinion (Evid. Code § 802); Failure
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4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED
LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 to provide sufficient information to sustain judicial notice (Evid. Code§ 453(a); In re Marriage of
2 Nurie (2009) 19 176 Cal.App.4th 478, 509).
3 Response: Evidence Code section 452 permits judicial notice of foreign law. (Evid. Code,
4 § 452, subd. (f).) The court may reply upon “advice of persons learned in the subject matter” to
5 determine the law of the foreign nation. (Evid. Code, § 454, subd. (a)(1).)1 The advice of persons
6 learned in the subject matter may be presented to the court in writing. (Evid. Code, § 454, subd.
7 (b).) The Court may rely upon expert witnesses retained by the parties, or the court can retain its
8 own independent expert. (See Evid. Code § 454, subd. (a) [court can consider “the advice of
9 persons learned in the subject matter . . . whether or not furnished by a party.”)
10 When one party requests judicial notice of foreign law, the court “shall afford each party
11 reasonable opportunity . . . to present to the court information relevant to (1) the propriety of taking
12 judicial notice of the matter and (2) the tenor of the matter to be noticed.” (Evid. Code, § 455,
13 subd. (a), italics added.) And when one party submits the written “advice of persons learned in
14 the subject matter . . . the court shall afford each such party reasonable opportunity to meet such
15 information before judicial notice of the matter may be taken.” (Evid. Code, § 455, subd. (b).) A
16 party does not necessarily have the right to cross-examine the expert on his/her opinion, in light of
17 section 454(b)’s allowance of written advice. (Diaz-Barba v. Superior Court (2015) 236
18 Cal.App.4th 1470, 1491 [affirming denial of request for cross-examination].)
19 In addition, typical exclusionary rules of evidence do not apply, apart from the rules in
20 place under Evidence Code section 352 and privilege rules, freeing the court from nearly all the
21 restrictions of the rules of evidence. (Evid. Code, § 454, subd. (a)(2).)
22 If the court is ultimately unable to ascertain the law of a foreign nation, it may apply
23 California law. (Evid. Code, § 311.)
24 Here, the Court should not apply Taiwanese law to disputed issues in this case. However,
25 if the Court finds that Taiwan law is relevant in this action, then under Evidence Code section 455,
26 it is mandatory that the Court provides Jessie the opportunity to submit the Report of Dr. Yao-
27
1
28 The law of a foreign nation is to be determined in a manner provided in the Evidence Code,
Division 4, i.e. Evidence Code section 450, et seq. (Evid. Code, § 310.)
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4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED
LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 Ming Shu. Yumi faces no prejudice by Jessie’s submission of the Report; the law already provides
2 that the parties do not have a right to cross-examine the expert on his/her opinion, in light of section
3 454(b)’s allowance of written advice. (Diaz-Barba v. Superior Court, supra 236 Cal.App.4th
4 1470, 1491.)
5 Yumi relies upon the Discovery Act to argue that Jessie failed to not properly disclose Dr.
6 Yao-Ming Hsu under Code of Civil Procedure section 2034.300. This reliance is misplaced. When
7 a party fails to disclose a witness whose “oral or deposition testimony in the form of an expert
8 opinion [that] party expects to offer in evidence at trial” (Code Civ. Pro., § 2034.210), then Section
9 3034.300 permits the exclusion of that testimony. Jessie will not offer Dr. Yao-Ming Hsu’s “oral
10 or deposition testimony . . . in evidence at trial.” Accordingly, the Code of Civil Procedure section
11 2034.300 is inapplicable. Jessie may properly offer Dr. Yao-Ming Hsu’s report as “advice of
12 persons learned” in Taiwanese law under Evidence Code section 454.
13 Objection No. 2:
14 Material Objected to: February 21, 2020 Declaration of Heather Hsiao
15 Grounds for Objection: Undisclosed Expert Witness (Code Civ. Proc. § 2034.300; Perry
16 v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 538); Failure to seek leave to augment or
17 amend expert witness disclosure or comply with requirements for same (Code Civ. Proc.§
18 2034.720); Lack of authentication (Evid. Code §§ 1400-1402); Failure to provide sufficient
19 information to sustain judicial notice (Evid. Code§ 453; In re Marriage of Nurie (2009) 176
20 Cal.App.4th 478, 509); Failure to provide proper notice of request for judicial notice (Evid. Code
21 453(b)).
22 Response: The February 21, 2020 Declaration of Heather Hsiao is the declaration of
23 Jessie’s lead attorney for Jessie’s civil petition currently pending before Taiwan’s High Court
24 regarding her waiver of inheritance from her mother, the Decedent. (Declaration of Wen-Huei
25 “Heather” Hsiao (“Hsiao Decl.”) at ¶ 2.) The information pertinent to Jessie’s Motion for
26 Summary Judgment is: (1) Jessie’s petition for revocation is at the stage of appeal to the High
27 Court of Taiwan, the intermediate court of appeals in Taiwan’s court system, and (2) no lower
28 court rulings are considered binding or final while an appeal is ongoing. (Hsiao Decl., ¶ 5.)
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4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED
LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 Although Heather Hsiao is an attorney, her declaration is provided as a percipient witness
2 regarding the status of the civil action pending before the Taiwan Shilin District Court. Heather
3 Hsiao does not provide expert witness testimony. A “retained expert” for the purposes of
4 disclosure is one retained by a party for the purpose of forming and expressing an opinion in
5 anticipation of the litigation or in preparation for the trial of the action (Easterby v. Clark (2009)
6 171 Cal.App.4th 772), which Heather Hsiao does not provide in her declaration. Accordingly,
7 Jessie did not identify Heather Hsiao as an expert witness under the Code of Civil Procedure
8 section 2034.300. (See Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 [treating physician was
9 a percipient expert, but that does not mean that his testimony was limited only to personal
10 observations; rather, like any other expert, he may provide both fact and opinion testimony].)
11 Further, Yumi apparently concedes the propriety of the declaration of Heather Hsiao by
12 offering a declaration of her Taiwanese attorney, Szu-Ho Chen, attached as Exhibit 8 to the
13 Declaration of Robert Cross in Support of Opposition to Jessie Huang’s Motion for Judgment on
14 the Pleadings and Motion for Summary Judgment on Yumi Huang’s October 23, 20017 Petition.
15 Yumi did not disclose Szu-Ho Chen as an expert witness, nor did she request judicial notice of his
16 declaration. Yumi cannot have it both ways.
17
18 DATED: SEPTEMBER 4, 2020 BERLINER COHEN, LLP
19
20 BY:
JONATHAN D. WOLF
21 LEILA N. SOCKOLOV
ATTORNEYS FOR PETITIONER AND RESPONDENT
22 JESSIE HUANG
23
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25
26
27
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4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED
LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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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 3 ELEVENTH FLOOR 9/4/2020 3:49 PM 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 JESSIE HUANG’S OPPOSITION TO YUMI YUEH YU LIN HUANG, HUANG’S OBJECTIONS TO JESSIE 12 HUANG’S EVIDENCE SUBMITTED IN Deceased. 13 SUPPORT OF MOTION FOR SUMMARY JUDGMENT 14 Date: September 10, 2020 15 Time: 9:00 a.m. Dept.: 28 16 Judge: Hon. George Miram Trial Date: October 13, 2020 17 18 Petitioner/Respondent Jessie Huang (“Jessie”) responds to Respondent/Petitioner Yumi 19 Huang’s Objections to Evidence Submitted in Support of Jessie Huang’s Motion for Summary 20 Judgment on Yumi Huang’s October 23, 2017 Petition. 21 Objection No. 1 22 Material Objected to: The March 4, 2020 Report of Dr. Yao-Ming Hsu in its entirety. 23 Grounds for Objection: Undisclosed Expert Witness (Code Civ. Proc. § 2034.300; Perry 24 v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 538 (“we hold that when the court determines 25 an expert opinion is inadmissible because disclosure requirements were not met, the opinion must 26 be excluded from consideration at summary judgment if an objection is raised.”); Failure to seek 27 leave to augment or amend expert witness disclosure or comply with requirements for same (Code 28 Civ. Proc. § 2034.720); Failure of examination upon bases of opinion (Evid. Code § 802); Failure -1- 4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 to provide sufficient information to sustain judicial notice (Evid. Code§ 453(a); In re Marriage of 2 Nurie (2009) 19 176 Cal.App.4th 478, 509). 3 Response: Evidence Code section 452 permits judicial notice of foreign law. (Evid. Code, 4 § 452, subd. (f).) The court may reply upon “advice of persons learned in the subject matter” to 5 determine the law of the foreign nation. (Evid. Code, § 454, subd. (a)(1).)1 The advice of persons 6 learned in the subject matter may be presented to the court in writing. (Evid. Code, § 454, subd. 7 (b).) The Court may rely upon expert witnesses retained by the parties, or the court can retain its 8 own independent expert. (See Evid. Code § 454, subd. (a) [court can consider “the advice of 9 persons learned in the subject matter . . . whether or not furnished by a party.”) 10 When one party requests judicial notice of foreign law, the court “shall afford each party 11 reasonable opportunity . . . to present to the court information relevant to (1) the propriety of taking 12 judicial notice of the matter and (2) the tenor of the matter to be noticed.” (Evid. Code, § 455, 13 subd. (a), italics added.) And when one party submits the written “advice of persons learned in 14 the subject matter . . . the court shall afford each such party reasonable opportunity to meet such 15 information before judicial notice of the matter may be taken.” (Evid. Code, § 455, subd. (b).) A 16 party does not necessarily have the right to cross-examine the expert on his/her opinion, in light of 17 section 454(b)’s allowance of written advice. (Diaz-Barba v. Superior Court (2015) 236 18 Cal.App.4th 1470, 1491 [affirming denial of request for cross-examination].) 19 In addition, typical exclusionary rules of evidence do not apply, apart from the rules in 20 place under Evidence Code section 352 and privilege rules, freeing the court from nearly all the 21 restrictions of the rules of evidence. (Evid. Code, § 454, subd. (a)(2).) 22 If the court is ultimately unable to ascertain the law of a foreign nation, it may apply 23 California law. (Evid. Code, § 311.) 24 Here, the Court should not apply Taiwanese law to disputed issues in this case. However, 25 if the Court finds that Taiwan law is relevant in this action, then under Evidence Code section 455, 26 it is mandatory that the Court provides Jessie the opportunity to submit the Report of Dr. Yao- 27 1 28 The law of a foreign nation is to be determined in a manner provided in the Evidence Code, Division 4, i.e. Evidence Code section 450, et seq. (Evid. Code, § 310.) -2- 4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 Ming Shu. Yumi faces no prejudice by Jessie’s submission of the Report; the law already provides 2 that the parties do not have a right to cross-examine the expert on his/her opinion, in light of section 3 454(b)’s allowance of written advice. (Diaz-Barba v. Superior Court, supra 236 Cal.App.4th 4 1470, 1491.) 5 Yumi relies upon the Discovery Act to argue that Jessie failed to not properly disclose Dr. 6 Yao-Ming Hsu under Code of Civil Procedure section 2034.300. This reliance is misplaced. When 7 a party fails to disclose a witness whose “oral or deposition testimony in the form of an expert 8 opinion [that] party expects to offer in evidence at trial” (Code Civ. Pro., § 2034.210), then Section 9 3034.300 permits the exclusion of that testimony. Jessie will not offer Dr. Yao-Ming Hsu’s “oral 10 or deposition testimony . . . in evidence at trial.” Accordingly, the Code of Civil Procedure section 11 2034.300 is inapplicable. Jessie may properly offer Dr. Yao-Ming Hsu’s report as “advice of 12 persons learned” in Taiwanese law under Evidence Code section 454. 13 Objection No. 2: 14 Material Objected to: February 21, 2020 Declaration of Heather Hsiao 15 Grounds for Objection: Undisclosed Expert Witness (Code Civ. Proc. § 2034.300; Perry 16 v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 538); Failure to seek leave to augment or 17 amend expert witness disclosure or comply with requirements for same (Code Civ. Proc.§ 18 2034.720); Lack of authentication (Evid. Code §§ 1400-1402); Failure to provide sufficient 19 information to sustain judicial notice (Evid. Code§ 453; In re Marriage of Nurie (2009) 176 20 Cal.App.4th 478, 509); Failure to provide proper notice of request for judicial notice (Evid. Code 21 453(b)). 22 Response: The February 21, 2020 Declaration of Heather Hsiao is the declaration of 23 Jessie’s lead attorney for Jessie’s civil petition currently pending before Taiwan’s High Court 24 regarding her waiver of inheritance from her mother, the Decedent. (Declaration of Wen-Huei 25 “Heather” Hsiao (“Hsiao Decl.”) at ¶ 2.) The information pertinent to Jessie’s Motion for 26 Summary Judgment is: (1) Jessie’s petition for revocation is at the stage of appeal to the High 27 Court of Taiwan, the intermediate court of appeals in Taiwan’s court system, and (2) no lower 28 court rulings are considered binding or final while an appeal is ongoing. (Hsiao Decl., ¶ 5.) -3- 4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 Although Heather Hsiao is an attorney, her declaration is provided as a percipient witness 2 regarding the status of the civil action pending before the Taiwan Shilin District Court. Heather 3 Hsiao does not provide expert witness testimony. A “retained expert” for the purposes of 4 disclosure is one retained by a party for the purpose of forming and expressing an opinion in 5 anticipation of the litigation or in preparation for the trial of the action (Easterby v. Clark (2009) 6 171 Cal.App.4th 772), which Heather Hsiao does not provide in her declaration. Accordingly, 7 Jessie did not identify Heather Hsiao as an expert witness under the Code of Civil Procedure 8 section 2034.300. (See Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 [treating physician was 9 a percipient expert, but that does not mean that his testimony was limited only to personal 10 observations; rather, like any other expert, he may provide both fact and opinion testimony].) 11 Further, Yumi apparently concedes the propriety of the declaration of Heather Hsiao by 12 offering a declaration of her Taiwanese attorney, Szu-Ho Chen, attached as Exhibit 8 to the 13 Declaration of Robert Cross in Support of Opposition to Jessie Huang’s Motion for Judgment on 14 the Pleadings and Motion for Summary Judgment on Yumi Huang’s October 23, 20017 Petition. 15 Yumi did not disclose Szu-Ho Chen as an expert witness, nor did she request judicial notice of his 16 declaration. Yumi cannot have it both ways. 17 18 DATED: SEPTEMBER 4, 2020 BERLINER COHEN, LLP 19 20 BY: JONATHAN D. WOLF 21 LEILA N. SOCKOLOV ATTORNEYS FOR PETITIONER AND RESPONDENT 22 JESSIE HUANG 23 24 25 26 27 28 -4- 4828-6749-1530v1 JESSIE HUANG’S OPPOSITION TO YUMI HUANG’S OBJECTIONS TO JESSIE HUANG’S EVIDENCE SUBMITTED LSOCKOLOV\26932001 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT