Vincent Jue vs. Maggie Jia Liu

Motion for Summary Judgment/Adjudication

Cal. Super. - 4th Dist.June 16, 2015

10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 VON ESCH & VON ESCH Mark F. Von Esch CSBN 101452 810 E. Commonwealth Ave. Fullerton CA 92831 Telephone (714) 879-5306 FAX (877) 640-4144 markvoneschlaw@hotmail. com Attorney for Plaintiff SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN AND FOR THE COUTY OF ORANGE, VINCENT JUE, Plaintiff, VS. MAGGIE JIA LIU and DOES 1 through 25, inclusive, Defendant CENTRAL JUSTICE CENTER Case No.: 30-2015-00793727 Assigned to: Hon. Geoffrey T. Glass NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION, SUBMITTED RY PLAINTIFF, VINCENT JUE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF {Filed and served concurrently with: 1. Separate Statement of Undisputed Facts in Support of Summary Judgment; Appendix of Exhibits; and, Proposed Order] Declaration of Mark von Esch Declaration of Vincent Juen o s W h o Date: Time: Dept: March 27, 1:30 p.m. Cc-32 2017 Action Filed: Trial Date: June 16, 2015 May 15, 2017 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 27, 2017 at 1:30 p.m. or as soon thereafter as the matter may be heard in Department C-32 of the Orange County Superior Court, Central Justice Center at 700 Civic Center Drive, West, Santa Ana, California, Plaintiff, Vincent Jue (herein “Jue”) will and hereby does move this Court under Code of Civil Procedure section 437c¢, subdivision (a), for an order that summary judgment, or in the alternative, summary adjudication, be entered in favor of Vincent Jue and against Defendant, Maggie Jia Liu (herein “Liu”). The grounds for issuance of summary judgment are that no triable issue exists for any material fact and Plaintiff is entitled to judgment as a matter of law. Alternatively, should the Court not find the complete adjudication of Plaintiff's Complaint appropriate, Plaintiff moves the Court for an order granting summary adjudication on the following legal issues prior to trial: 1) No triable issues exist in regards to the First Cause of Action for Breach of Promissory Note of $140,371.16; 2) No triable issues exist in regards to the Second Cause of Action for Breach of Promissory Note of $40,000; 3) No triable issues exist in regards to the Third Cause of Action for Breach of Lost Promissory Note of $300,000; 4) No triable issues exist as to the Fourth Cause of Action of Fraud; 5) No triable issues exist as to the Fifth Cause of Action for NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 1 13 14 15 16 17 18 48 20 21 22 23 24 25 26 27 28 Conversion; 6) No triable issues exist in the Sixth Cause of Action for Common Count for Money Had and Received; 7) No triable facts exist in the Seventh Cause of Action for Breach of Oral Promise to Repay Loan; and, 8) No triable facts exists in the Eighth Cause of Action for Fraudulent Transfer. Plaintiff “Jue”’s Motion is based upon this Notice of Motion; the supporting Memorandum of Points and Authorities; the accompanying Appendix of Exhibits, including the Declarations of Vincent Jue and Mark von Esch; the Separate Statement of Undisputed Facts filed concurrently herewith; and any and all other matters properly before the Court at the time of the hearing. Dated: |Z w/l6 VON ESCH & VON ESCH rd Ad Mark F. von Esch, Attorney for Plaintiff, VINCENT JUE NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF CONTENTS Page I. INTRODUCT ION.civicsmesstsesssass esseresesenese senses sseessmssnsssesesasssssminnees LL IT. STATEMENT OF FACTS.vseciesiscmeesessssasisnanes © A. PLAINTIFF'S RELATIONSHIP WITH DEFENANDANT .....1 B. THE MARCH 2013 LOANevreemeseireretcnesesesiiesmsessssnsnsesensins oo 2 C. THE MAY 2013 LOAN.0 3 D. THE JULY 2013 LOANmeinenseseeenesesesssssssssnosssnnns «+ 4 E. DEFENDANT’ S ACKNOWLEDGMENT OF THE DEBTS AND SQUANDERING OF THE PLEDGED SECURITY... . 5 FE. PROCEDURAL BACKGROUND...creersenses oD ITI. APPLICABLE LEGAL STANDARDS FOR SUMMARY JUDGMENT...... © IV. NO TRIABLE ISSUES AT FACT EXISTS IN REGARDS TO THE THREE PROMISSORY NOTES. .iiiimiiiicsnceninesssssesesesossssssssssenses 1 V. NO TRIABLE ISSUE OF FACT EXISTS IN REGARDS TO THE FRAUD CLAIM AS DEFENDANT HAD NO INTENTION TO PERFORM THE TERMS OF THE NOTES...a0 9 V1. NO TRIABLE FACTS EXIST AS TO THE CONVERSION CLAIM AS DEFENDANT LIU WRONGFULLY DISPOSED OF THE COLLATERAL FOR THE LOANS...rrirrereerserrressesssermnes oo LL VIT. NO TRIABLE ISSUE OF FACTS EXIST IN REGARDS TO THE COMMON COUNT CLAIMS FOR MONEY HAD AND RECEIVED... 12 VIII.NO TRIALBLE ISSUE OF FACT EXISTS IN REGARDS TO THE ORAL PROMISE TO PAY.miiiseesecsessensessesesise 1 3 IX. NO TRIABLE ISSUES EXIST IN REGARDS TO THE CLAIM OF FRAUDULENT TRANSFERS...sissiessnseseereseesennes «LA X. CONCLUS TONitinerariesssssnreresss sass isasas sis sss obanssse sossesenennans 15 TABLE OF AUTHORITIES Page State Cases Zavala v Arce (1997) 58 Cal.App.4™ 915, 926, 68 Cal.Rpt.2d 571coi 6 Hunter v.Pacific Mechanical Corporation (1995) 37 Cal.App.4th 1282, 1287, 44 Cal.Rptr.2d 335, 337... 7 FPI Development, Inc. v. Nakashima, (1991) 231 Cal.App.3d 367, 282 Cal.Rptr. 508, 517.iiine 7 McArthur v. Johnson (1932) 216 Cal. 580, 582irirsseeseisesevessssseesses essnere esas esssssessesssssresesens 01 Oakland Medical Building Corp. v. Aureguy (1953) A7 CAl.2A 521sseers seeseensssssessssabsensnesessen ssa mae ieeeennanene Engulla v Permanente Medical Group, Inc. {1997) 15 Cal.4'™ 951, 974, 64 Cal.Rptr.2d 843.iios 10 State Farm Mutual Auto Ins. Co. v Department of Motor Vehicles (1997) 53 Cal.App.4" 1076, 1081-1082, 62 Cal.Rptr.4™" 1076... 11 Department of Industrial Relations v UI Video Stores, Inc. (1997) 55 Cal.App.4'" 1084, 64 Cal.Rptr.2d 471s «11 Mains v City Title Ins. Co. (1949) 34 Cal.2d 580, 586, 212 P2d 873eeneinneesesesssssesssssessenes 12 Rotea v Izuel (1939) 14 Cal.2d 605, 611, 95 P.2d 927.mmaos L 2 [11] State Statutes California Civil Procedures § 437 ((C)ooo6 B. Witkin, California Procedure § 532n at 620 (AEN BA. LOOeeveecrore sre ast setesee nen reese serene esessessnasserensseen oT California Civil Code § 3439, eb Seu14 [iii] 10 1 19 20 21 28 POINTS AND AUTHORITIES INTRODUCTION Plaintiff commenced this action on June 16, 2015 seeking to recover monies totaling $480,371.16 loaned to Defendant between March, 2013 and July, 2013. A First Amended Complaint was filed on August 21, 2015, alleging causes of action for 1) Breach of Promissory Note ($140,371.16); 2) Breach of Promissory Note ($40,000); 3) Breach of Lost Promissory Note ($300,000); 4) Fraud; 5) Conversion; 6) Common Count for Money Had and Received; 7) Breach of Oral Promise to Repay Loan; and, 8) Fraudulent Transfer. II STATEMENT OF FACTS A. Plaintiff’s Relationship With Defendant Plaintiff met Defendant in 2013 through a singles club. At the time, Plaintiff was a recent widower and had not dated during his 35 year marriage. Declaration of Vincent Jue, attached hereto (“Jue Dec.”) 9 2. Defendant told Plaintiff she had a successful business and investments, which included buying and selling real estate and stocks and bonds and that she earned a high annual income of $500,000. Id.2 She represented to Plaintiff that she had a wealthy ex-husband who owned a prominent company in POINTS AND AUTHORITIES 1N SUPPORT OF MOTION FOR SUMMARY JUDGMENT -~ 1 p = 1C 12 13 15 16 18 19 21 N o ~ 23 24 26 27 Taiwan. Id.2 She told Plaintiff that she was an honorable person with high ethical standards who had raised two high school aged children by herself. Id.Z Defendant conned Plaintiff out of substantial sums cof money over a period of several months. Defendant claimed she was in temporary, but dire, financial straits and that she needed short term financial assistance to fulfill certain obligations which included paying college tuition of her children. Id. at 9 3. Within only six months of meeting Plaintiff, Defendant requested to borrow money from Plaintiff through three (3) separate loans (collectively, the “Loans”). The loans were evidenced by Notes (collectively, the “Promissory Notes”). Id. Defendant has made no payment on any of the Notes. B. The March 2013 Loan In May, 2013, Defendant initially requested to borrow from Plaintiff a short-term loan in the sum of $40,000 (the “March 2013 Loan). Jue Dec. 9 4. Defendant represented that she needed money for her real estate business. Plaintiff transferred the loan proceeds to Defendant and memorialized the debt in a Promissory Note executed by Defendant that was notarized on March 30, 2013 (the “March 2013 Promissory Note”). Id., Ex. A. The principal of the March 2013 Loan was to be repaid in full 12 months. 1Id., Ex. A at §§ 1, 2. The debt was purportedly secured by Defendant’s Jewelry. Id. Ex. A at §§ 8,9. Defendant made no payment on the Note nor did she furnish Plaintiff with the jewelry. POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 2 10 11 12 13 14 16 17 14 26 27 28 cC. The May 2013 Loan In May 2013, Defendant again requested to borrow more money. Jue Dec. 1 7. Specifically, Defendant requested a short-term loan in the sum of $300,000, which she represented to Plaintiff she needed capital for a stock market investment to support payment of her children’s college tuition. (the “May 2013 Loan”). Id.7 Plaintiff agreed to place the sum of $300,000 into a brokerage account. The parties agreed that Defendant could use the investment income generated by the account, after payment of interest, to assist with her children’s school tuition. They also agreed that the corpus of the loan could not be depleted for Defendant’s use without Plaintiff’s consent. Id.7 Pursuant to this understanding in late May, 2013, Plaintiff caused the sum of $300,000 to be wired into a brokerage account held in Defendant’s name at Charles Schwab. Jue Dec. 9 8. Plaintiff prepared a promissory note to memorialize the May 2013 Loan (the “May 2013 Promissory Note”), and two copies of the Note were given to given to Defendant for her execution. Id. Notwithstanding Agreement to only use the profits derived from the corpus, Defendant utilized and dissipated the entire sum of $300,000. While Plaintiff and Defendant were on a trip, Defendant handed the executed May 2013 Promissory Note to Plaintiff, who placed it in his briefcase. Id. Upon arriving home Plaintiff discovered that the May 2013 Note was missing. Plaintiff asked Defendant about its POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whereabouts, and she denied having the signed promissory note. No one except for the parties had access to the briefcase during the trip. Defendant agreed to sign another, replacement promissory note (the “Amended May 2013 Promissory Note”). Id. Ex. B. In written communication between Plaintiff and Defendant via text messages, Defendant admitted the May 2013 Loan existed and represented that she had signed the Amended May 2013 Promissory Note and had sent it to Plaintiff. Jue Dec. {1 9 Ex. “D”. Plaintiff never received the executed Amended May 2013 Promissory Note. Id. Plaintiff believes that the original Note was stclen from his briefcase by Defendant and that she had no intention to honor the terms of the May 2013 Loan. Jue Dec. | 10. However, Defendant “Liu”, in sworn Deposition testimony, acknowledges the debt and indicated that she signed the Note and planned to repay said sum to Plaintiff. D. The July 2013 Loan In July, 2013, Defendant again requested more money from Plaintiff. Jue Dec. 9 13. She asked for a short-term loan in the sum of $140,371.16 (the “July 2013 Loan”). Id. The July 2013 Loan was supposedly going to be used by Defendant for her purported real estate business - to complete a real estate deal that involved the “flipping” of an out of state property. Id. Defendant represented she would return the principal and interest quickly. The July 2013 Loan was memorialized by a Promissory Note executed by Defendant on or about July 15, 2013 (the “July 2013 Promissory Note”). Jue Dec. 9 10, Ex. E. Under POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the terms of the July 2013 Promissory Note, the principal of the loan was to be repaid in three (3) months. Id., Ex. D at §§ 1,3'. The debt was secured by Defendants jewelry. Id. Ex. D at 99 8-9. Defendant claimed she had diamond jewelry valued at over $1 Million. Jue Dec. { 17, Ex. F. Defendant has not repaid any principal or interest due for the July 2013 Loan. Id. E. Defendant’s Acknowledgement of the Debts and Squandering of the Pledged Security In March of 2014, Defendant’s lies, cover-ups and audacious requests for more money caused Plaintiff to cease all meeting with Defendant. Jue Dec. 9 19. Shortly before Plaintiff filed this action, Defendant stormed into Plaintiff's place of business and demanded Plaintiff change the terms of the Loans to allow her additional time to repay the same. Id. Defendant admitted that the valuable collateral -- her expensive jewelry - had been sold. Id. F. Procedural Background The court previously granted a prejudgment writ of attachment on two of the ! The July 2013 Promissory Note’s reference to “0.05 percent per annum” was a typographical error. The parties intended an interest rate of five percent (5%). Jue Dec. 9 10 POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 5 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notes. Specifically, the Court made the following findings: “There is no ambiguity in the signed documents that the money was not a gift. Therefore, the court does not accept parole evidence to the effect that the loans were gifts.” Defendant “Liu” in Deposition Testimony concedes that the Third Note in the sum of $300,000 was, in fact, a “loan” and that she intended to repay said funds as she would not accept such a large gift. III APPLICABLE LEGAL STANDARDS FOR SUMMARY JUDGMENT A motion for summary judgment shall be granted if all the papers submitted show there are no triable issues as to any material facts and the moving party is entitled to judgment as a matter of law. C.C.P. § 437 (c). To be "material" for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. Zavala v. Arce (1997) 58 Cal.App.4th 915, 926, 68Cal.Rptr.2d 571. POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 6 10 11 12 i3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' burden on summary judgment is to "produce admissible evidence on each element of a cause of action entitling them to judgment." C.C.P. § 437c{o) (1); Hunter v. Pacific Mechanical Corporation (1995) 37 Cal.Rpp.4th 1282, 1287, 44 Cal.Rptr.2d 335, 337. Iv NO TRIABLE ISSUES AT FACT EXISTS IN REGARDS TO THE THREE PROMISSORY NOTES A promissory note is a contract in writing. Trigg v. Arnot, (1937) 22 Cal.App.2d 455, 457; B. Witkin, California Procedure § 532n at 620 (4th ed. 1997). In an action on a promissory note, "execution of the note" is sufficient to plead the "existence of the contract"; the "incorporation of a copy of the note alleges its terms"; and "the allegation of nonpayment in accordance with those terms alleges a breach." FPI Development, Inc. Vv. Nakashima, (1991) 231 Cal.App.3d 367, 282 Cal.Rptr. 508, 517. " See, e.g., McArthur v. Johnson (1932) 216 Cal. 580, 582 (enforcing promissory note with unconditional promise to pay money on demand); Oakland Medical Building Corp. v. Aureguy (1953) 41 Cal.Z2d 521. POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ~ 7 p = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In the facts at hand, the Notes state all of the necessary terms including the amount of the debt, Lender, Borrower, terms of the loan and rate of interest. Defendant “Liu” acknowledges having signed all three (3) Notes. No triable issues of fact exist since the Notes on their own face contain all of the elements necessary to enforce the contract. The terms are clear and unambiguous so that parole evidence is not necessary to explain any of the terms or circumstances surrounding the transaction. In this case, “Liu” signed Promissory Notes for two of the Notes and admits having signed the third Note for $300,000. In Deposition testimony “Liu” acknowledges this transaction for $300,000 was a loan and that Defendant in fact signed it. Furthermore, she acknowledges having signed the same and mailing it to Plaintiff. Deposition testimony on this point is as follows: “Q. So, it’s your testimony today that you signed the $300,000 Note and you had re-sent it to Vincent; is that correct? A. Yes, I mean, I mailed 1t to him.” (Deposition of Maggie Jia Liu, Page 87, Lines 1 -- 4) POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 8 10 11 13 14 15 16 i7 18 19 20 21 22 23 24 25 26 27 28 No issue of fact remains as to the three Notes. All were signed, no payments were received and Plaintiff is owed the sums described herein. Further, as the Court noted in its prior ruling on a writ of attachment, parole evidence 1s not appropriate since the Notes are not ambiguous in any respect as to the amounts borrowed and the date sums are due. Defendant cannot introduce “parole” evidence to rebut the clear provisions of the Note. Vv NO TRIABLE ISSUE OF FACTS EXISTS IN REGARDS TO THE FRAUD CLAIM AS DEFENDANT HAD NO INTENTION TO PERFORM THE TERMS OF THE NOTES Defendant “Liu” engaged in fraudulent conduct not only in making false representations regarding her financial ability, marital status and background, but also in having no intention to ever repay the monies lent. Further, Defendant concealed from Petitioner her income and financial status and her criminal convictions, including those for grand theft and hit and run. Obviously, had Plaintiff known the truth about her, he would never have had any association with her, let alone lent her money. POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 9 10 11 12 13 14 15 lo 17 18 i9 20 21 22 23 24 25 26 27 28 Elements of intentional misrepresentation include representation to Plaintiff that an important fact was true, that their representation was false, that Defendant either knew the representation was false or made it recklessly and without regard for the truth, that Defendant intended Plaintiff to rely on the representation, that Plaintiff reasonably relied on the representation and, that Plaintiff was harmed. See; Fngulla v Permanente Medical Group, Inc. (1997) 15 Cal.4™ 951, 974, 64 Cal.Rptr.2d 843. In the facts at hand, Defendant “Liu”, in Deposition testimony, states that in regards to the $40,000 and $140,371.16 Notes that she never intended to repay these obligations. This admission represents a Promise made without any intention of performing since she knowingly executed Notes acknowledging receipt of monies and promised to repay the same on the dates due. Said statements are also supported by the fact that “Liu”, after receiving over $480,000 made no effort to either make any payment or transfer any of the agreed upon jewelry “collateral” to Plaintiff. “Liu” misrepresented her financial background and abilities. She had no viable business or income to repay POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 10 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these debts. Plaintiff relied upon these false statements to his detriment and said reliance was a substantial factor in causing the loss. In Deposition testimony she claims she relied on “boyfriends” and an ex-husband to support her. VI NO TRIABLE FACTS EXIST AS TO THE CONVERSION CLAIM AS DEFENDANT LIU WRONGFULLY DISPOSED OF THE COLATERAL FOR THE LOANS Conversion 1s any act of dominion wrongfully executed over the personal property of another. See; State Farm Mutual Auto Ins. Co. v Department of Motor Vehicles (1997) 53 Cal.App.4™" 1076, 1081-1082, 62 Cal.Rptr.4™ 1076. Department of Industrial Relations v UI Video Stores, Inc. (1997) 55 Cal.App.4" 1084, 04 Cal.Rptr.2d 471 extends conversion actions to situations where a person without legal title may recover from a converter if the Plaintiff is responsible to the true owner, such as in the case of a Bailee or pledger of the property. In the case at hand, Defendant “Liu” admits having sold and disposed of the jewelry collateral despite having agreed to allow “Jue” to have the same as security. She POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 11 10 11 12 13 14 16 17 18 19 20 21 22 23 24 26 27 28 represented that the value of the collateral greatly exceeded the loan amount. In selling the jewelry, “Liu” exerted dominion and control in a wrongful manner - which constitutes “conversion”. VII NO TRIABLE ISSUE OF FACTS EXIST IN REGARDS TO THE COMMON COUNT CLAIMS FOR MONEY HAD AND RECOVERED The common count is a general pleading that is applicable wherever one person has received money which belongs to another and which in equity and good conscience or in other words, in justice and right should be returned. See; Mains v City Title Ins. Co. (1949) 34 Cal.2d 580, 586, 212 P2d 873. Said cause of action is based on the implied promise which the law creates a remedy to restore money which the Defendant in equity and good conscience should not retain. The loan implied the promise from receipt of the money to prevent unjust enrichment. See; Rotea v Izuel (1939) 14 Cal.2d 605, 611, 95 P.2d 927. The facts are undisputed that Plaintiff “Jue”, in three (3) separate transactions totaling over $480,000, provided funds to Defendant “Liu” and that in equity and good POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 12 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conscience Defendant should not be allowed to retain these sums. Defendant “Liu” acknowledges this fact in her Deposition testimony that she tried to at least repay the sum of $300,000 since she could not accept a gift of this sum. Therefore, “Liu” has a legal obligation in order to prevent unjust enrichment to repay these monies and these facts are undisputed. VIII NO TRIABLE ISSUE OF FACT EXISTS IN REGARDS TO THE ORAL PROMISE TO REPAY Defendant “Liu” concedes the $300,000 obligation was a debt that she owed to Plaintiff and that she failed to repay said sums. No triable issue of facts exists since Defendant admits having received the loan proceeds, agreed to repay the same and has falled to do so. This concession made in her Deposition testimony indicates that there was, at a minimum, an oral promise to repay these sums. /// /// [17 /77 /7/ POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 13 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 26 27 28 IX NO TRIABLE ISSUES EXIST IN REGARDS TO THE CLAIM OF FRAUDULENT TRANSFER An obligation can be considered a fraudulent transfer pursuant to the Uniform Fraudulent Transfer Act as codified in Civil Code § 3439, et seg. if the following elements can be established: 1. That Plaintiff has a right to payment from the debtor; 2. That Defendant “Liu” transferred property; 3. That Defendant transferred the property with the intent to hinder, delay or defraud one or more of her creditors; 4. That Plaintiff was harmed; and, 5. That Defendants conduct was a substantial factor in causing Plaintiff harm. No triable issues of fact in regards to the transfer of assets that were pledged as security for the monies loaned to Ms. Liu. Defendant “Liu” transferred and sold valuable jewelry that she pledged to Plaintiff “Jue” without his consent and without using any of the proceeds to pay Plaintiff. This was done with the obvious intent to hinder, delay, prevent POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or defraud her creditors and therefore in disposing of the collateral has hindered and delayed the collection and repayment of the sums provided. X CONCLUSION As a married woman, Defendant deceived Plaintiff from the very beginning by being a “single’s” dating service member. She conned Plaintiff with a totally false, fabricated persona. She lied about her marital status, financial background, criminal records and the purpose and use of the loans. Summary Judgment is appropriate in situations like the case at hand where there are no triable issues of fact. In this case Plaintiff has demonstrated a series of loans, none of which are in dispute and for which no payment has been made. Judgment should be entered in favor ‘of Plaintiff. Date: | L/3// 4 Respectfully Submitted, VON ESCH & VON ESCH By: |! VvL NN Mark F. von Esch, Attorney For Plaintiff, Vincent Jue POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 15