548444212 REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT [Final Signed 8.2.2012] (Tang)
1 2 3 4 5 6
JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Defendants SCHOLASTICA TANG, TANG FAMILY INVESTMENT, LLC
7 8 9
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES-CENTRAL DISTRICT
10 11 12 13 14 15 16 17 18 19 20 21 22 23
TAMARA WILKINS, an individual,
) ) ) Plaintiff, ) ) vs. ) JOSEPH FRANCIS TREJO, an individual; ) ) ASTON ENZO INVESTMENTS, INC., A ) California Corporation; SCHOLASTICA ) TANG, an individual; WING YUEN ) TIMOTHY LIU, an individual; TANG ) FAMILY INVESTMENT, LLC; and DOES 1 ) through 100, Inclusive, ) ) ) Defendant(s). ) ) ) ) ) ) ) ) ) )
Case No.: BC467987 [Assigned for All Purposes to Judge Alan S. Rosenfield, Dept. 31] DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO FILE RESPONSE TO COMPLAINT [Filed Concurrently With the Answer of Scholastica Tang and Tang Family Investment, LLC.] DATE: TIME: DEPT:
August 10, 2012 1:30 p.m. 31
Complaint Filed:
August 25, 2011
24 25 26 27 28 - 1DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
1 2
I.
INTRODUCTION Defendants SCHOLASTICA TANG (“Ms. Tang”), and TANG FAMILY
3
INVESTMENT, LLC (“TFI”) request that the Court exercise its power to set aside the entry of
4
default against Ms. Tang and TFI because Ms. Tang and TFI’s failure to file a responsive
5
pleading to the Complaint was due to its mistake, inadvertence, surprise and excusable neglect.
6
TFI’s co-defendant Joseph Trejo (“Defendant Trejo”) misled it by representing to it that he had
7
obtained counsel for the defendants and that the legal matter was being taken care of. When TFI
8
discovered that Defendant Trejo’s representations were false, it promptly obtained counsel and
9
now moves to set aside the entry of default against it. Ms. Tang and TFI attach hereto a copy of
10 11
their proposed answer to the Complaint of Plaintiff TAMARA WILKINS (“Plaintiff”). Plaintiff contends that she invested money with “Joint Venture Partnership” (“JVP”), but
12
does not contend that Ms. Tang or TFI executed any written agreement, received any monies
13
from Plaintiff directly or otherwise engaged in any wrongful conduct. In fact, Plaintiff makes no
14
specific allegations regarding Ms. Tang and TFI at all in her Complaint. Indeed, Ms. Tang and
15
TFI did not receive any money from Plaintiff directly or indirectly and justice requires that these
16
Defendants have an opportunity to defend against the claims raised in the Complaint and to have
17
the matter decided on its merits. Code of Civil Procedure § 473(b) vests this Court with the
18
power to relieve Ms. Tang and TFI from default and both have satisfied the requisite showings
19
for such relief.
20
Plaintiff articulates a timeline of events in her opposition, but cannot contradict Ms.
21
Tang’s assertion that Defendant Trejo promised and both Ms. Tang and TFI believed Defendant
22
Trejo and relied on his promises to obtain counsel to represent them in this matter. This was true
23
even after the Case Management Conference (Opposition p. 3:25-28), and the subsequent
24
settlement conference between the pro per Defendants and Mr. Sawkins in April 2012. (Tang
25
Decl. ¶ 5.) Indeed, Tang lost confidence in Defendant Trejo’s representations after the matter
26
did not settle in April and Defendant Trejo could not confirm the retention of counsel for Ms.
27
Tang and TFI. (Id.) Ms. Tang then retained counsel for herself and TFI and filed the instant
28
motion seeking relief of court. (Id.) - 2DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
1
Reginald Roberts, Jr., of SANDERS ROBERTS LLP, contacted Plaintiff’s counsel,
2
Kevin B. Sawkins of SAWKINS & ALBERT, to seek relief from entry of default. Mr. Sawkins
3
refused even the professional courtesy of a return phone call and, as of the date of the filing of
4
this Reply, no one from the office of Sawkins & Albert has returned a call. (Roberts Decl. ¶ 3.)
5
Plaintiff would not stipulate to the requested relief and now opposes the motion for relief
6
because the only way for Plaintiff to prevail against Ms. Tang and TFI is to deny them an
7
opportunity to defend against Plaintiff’s meritless claims. It appears that Plaintiff, like Ms. Tang
8
and TFI, was misled by Defendant Trejo regarding the matters at issue in the Complaint. Ms .
9
Tang and TFI now move this Court to follow public policy that favors the resolution of
10
controversies based on the merits. Berman v. Klassman, 17 Cal.App.3d 900, 909 (1971).
11
This case is still in the pleading stage. Plaintiff will suffer no prejudice when the Court
12
sets aside the default entered against Ms. Tang and TFI. Plaintiff, in opposing the Motion to Set
13
Aside Default, does not argue that she will suffer prejudice if the Court sets aside the default
14
because she cannot make such a claim in good faith.
15
II.
DEFENDANTS TANG AND TFI SATISFY ALL REQUIREMENTS NECESSARY
16
TO SET ASIDE THE DEFAULT
17
Plaintiff agrees that the Court has the authority to set aside the default as requested if the
18
three conditions are met. “To set aside a judgment based upon extrinsic mistake one must satisfy
19
three elements. First, the defaulted party must demonstrate that it has a meritorious case.
20
Second, the party seeking to set aside the default must articulate a satisfactory excuse for not
21
presenting a defense to the original action. Last, the moving party must demonstrate diligence in
22
seeking to set aside the default once ... discovered.” Rappleyea v. Campbell, (1994) 8 Cal.4th
23
975, 982, quoting Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147–1148. Ms. Tang and TFI
24
satisfied each of the aforementioned requirements.
25
Both Ms. Tang and TFI have meritorious defenses against Plaintiff’s claims. Indeed,
26
Plaintiff did not and cannot allege any specific misconduct attributable to Ms. Tang or TFI. The
27
absence of a single factual allegation in the Complaint concerning specific conduct by Ms. Tang
28
or TFI supports their position that both have meritorious defenses. Ms. Tang and TFI have - 3DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
1
attached hereto a copy of their proposed Answer to Plaintiff’s Complaint setting forth multiple
2
defenses to Plaintiff’s claims against them. At this stage in the litigation, public policy favors a
3
disposition that will allow Ms. Tang and TFI to resolve the matters at issue on their merits.
4
Berman v. Klassman, 17 Cal.App.3d 900, 909 (1971). Plaintiff failed to address this critical
5
issue in her Opposition because the policy weighs heavily in favor of setting aside the default as
6
requested.
7
Furthermore, Ms. Tang and TFI relied on the misrepresentations of Defendant Trejo
8
regarding his alleged efforts to retain counsel to defend against the claims raised by Plaintiff
9
against Ms. Tang and TFI. Defendant Trejo assured Ms. Tang and TFI that he would obtain
10
legal counsel to assist with the legal matter and assured Ms. Tang and TFI that they did not need
11
to take any actions related to the lawsuit. (Tang Decl. ¶ 3.) Ms. Tang and TFI believed
12
Defendant Trejo and relied on his promises to obtain counsel to represent the Defendants. (Tang
13
Decl. ¶ 3.)
14
Only after the failed settlement with Plaintiff’s counsel did Ms. Tang realize that Mr.
15
Trejo was not going to retain counsel. By the time TFI realized that Defendant Trejo misled it
16
and did not retain counsel or otherwise take any steps to protect its interest in the action, the
17
statutory time to file a responsive pleading had passed. (Tang Decl. ¶ 6.) The extrinsic fraud
18
and mistake provide a valid basis for relief from entry of default against TFI. Engaging in a
19
settlement conference as an unrepresented party and sending counsel a case excerpt that
20
references Ms. Tang as a consultant does not eliminate the extrinsic fraud perpetrated by
21
Defendant Trejo on Ms. Tang and TFI. Accordingly, Ms. Tang and TFI urge this Court
22
respectfully to grant the requested relief from entry of default and to resolve this matter on its
23
merits.
24
Finally, Plaintiff ignores the law regarding the requested relief that supports relief if the
25
application is made within six months of entry of default. CCP 473(b). Relief under this
26
provision of 473(b) is mandatory if the conditions are fulfilled. Matera v. McLeod, 145
27
Cal.App.4th 44, 63 (Cal.App. 2 Dist., 2006). Ms. Tang and TFI filed their requests for relief
28
from default approximately one hundred six days from the entry of default. In light of these - 4DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
ATTACHMENT:
ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1 2 3 4 5 6
JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Defendants SCHOLASTICA TANG, TANG FAMILY INVESTMENT, LLC
7 8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES-CENTRAL DISTRICT
10 11 12 13 14 15 16 17 18 19
TAMARA WILKINS, an individual,
) ) Plaintiff, ) ) vs. ) ) JOSEPH FRANCIS TREJO, an individual; ) ASTON ENZO INVESTMENTS, INC., A ) ) California Corporation; SCHOLASTICA ) TANG, an individual; WING YUEN ) TIMOTHY LIU, an individual; TANG FAMILY INVESTMENT, LLC; and DOES 1 ) ) through 100, Inclusive, ) ) Defendants. ) )
Case No.: BC467987 [Assigned for All Purposes to Judge Alan S. Rosenfield, Dept. 31] ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC Complaint Filed:
August 25, 2011
20 21
ANSWER AND AFFIRMATIVE DEFENSES
22
Defendants SCHOLASTICA TANG and TANG FAMILY INVESTMENT, LLC
23
(“Defendants”) hereby answer the complaint of Plaintiff TAMARA WILKINS (“Plaintiff”) as
24
follows:
25 26
1.
The answering Defendants deny, generally and specifically, each and every
allegation contained in the Plaintiff’s complaint.
27 28 - 1ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1
FIRST SEPARATE AND AFFIRMATIVE DEFENSE
2
(Fails To State A Cause Of Action)
3 4
2.
The complaint fails to allege facts sufficient to state a cause of action or a claim
upon which relief could be granted.
5
SECOND SEPARATE AND AFFIRMATIVE DEFENSE
6
(Fails To Allege With Sufficient Specificity)
7 8
3.
The first cause of action of the complaint fails to allege fraud with sufficient
specificity.
9
THIRD SEPARATE AND AFFIRMATIVE DEFENSE
10
(Attorney’s Fees)
11 12
4.
The complaint fails to state facts sufficient to justify an award of attorney’s fees to
the Plaintiff.
13
FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
14
(Release and Waiver)
15
5.
The answering Defendants allege that Plaintiff’s actions constituted a full release
16
and waiver by Plaintiff of any and all claims which Plaintiff may have against the answering
17
Defendants.
18
FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
19
(Unclean Hands)
20
6.
The answering Defendants allege that to the extent the Plaintiff seeks equitable
21
relief, Plaintiff’s inequitable conduct constitutes unclean hands and therefore bars the granting of
22
relief to Plaintiff herein.
23
SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
24
(Statute of Limitations)
25
7.
The answering Defendants are informed and believe and thereon allege that if
26
there presently exists or ever existed, any or all of the alleged rights, claims or obligations which
27
Plaintiff seeks by way of her complaint, each and every cause of action in the complaint is barred
28
by the applicable sections of the California Code of Civil Procedure. - 2ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1
SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
2
(Waiver)
3 4
8.
The Plaintiff, by her conduct, has waived all the alleged claims set forth in the
complaint.
5
EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
6
(Estoppel)
7 8
9.
The Plaintiff is estopped, by reason of her conduct, from asserting any of the
claims set forth in her complaint.
9
NINTH SEPARATE AND AFFIRMATIVE DEFENSE
10
(Pari Delicto)
11
10.
The answering Defendants allege that the Plaintiff herein and each and every
12
purported cause of action in the complaint are barred because Plaintiff has engaged in acts and
13
courses of conduct which rendered them in pari delicto.
14
TENTH SEPARATE AND AFFIRMATIVE DEFENSE
15
(Offset)
16 17
11.
The answering Defendants have valid claims against the Plaintiff, and are entitled
to offset the value of those claims against the value, if any, of the Plaintiff’s claims.
18
ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
19
(Comparative Fault)
20
12.
Any recovery to which the Plaintiff might otherwise have been entitled based
21
upon any claim of alleged negligence must be proportionally reduced by reason of the Plaintiff’s
22
own comparative negligence. TWELFTH AFFIRMATIVE DEFENSE
23 24
13.
Defendant is informed and believes that Plaintiff ‘s failed to exercise ordinary
25
care, caution or prudence to avoid the damages complained of, and that such damages, if any,
26
were directly and proximately contributed to and caused by Plaintiff.
27 28 - 3ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1
THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
2
(Contributory Fault)
3
14.
If the Plaintiff suffered any loss or damage as alleged in her complaint, such loss
4
or damage was legally and proximately caused and contributed to by persons or entities other
5
than the answering Defendants.
6
FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
7
(Failure to Mitigate)
8 9
15.
The Plaintiff’s claims are barred, in whole or in part, because of her failure to take
reasonable steps to mitigate damages.
10
FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
11
(Anticipatory Repudiation)
12
16.
The answering Defendants are informed and believe and on such information and
13
belief allege that Plaintiff breached her contract, if any, with Defendants, and that by reason of
14
said breach of contract, Defendants have been excused of their duties to perform all obligations
15
set forth in said contract.
16
SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
17
(Breach of Covenant Good Faith and Fair Dealing)
18
17.
The Plaintiff is barred from any right to relief against the answering Defendants
19
because of her own breaches of the implied covenant of good faith and fair dealing inherent in all
20
contractual relationships.
21
SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
22
(Intervening Cause)
23
18.
Any damages alleged to have been sustained by the Plaintiff were the result of
24
intervening or superseding causes, and the actions of third parties, precluding any liability on the
25
part of the answering Defendants.
26
EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
27
(Ratification)
28
19.
The Plaintiff is barred from any right to recovery because she has expressly
- 4ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Defendants SCHOLASTICA TANG, TANG FAMILY INVESTMENT, LLC
7 8 9
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES-CENTRAL DISTRICT
10 11 12 13 14 15 16 17 18 19 20 21 22 23
TAMARA WILKINS, an individual,
) ) ) Plaintiff, ) ) vs. ) JOSEPH FRANCIS TREJO, an individual; ) ) ASTON ENZO INVESTMENTS, INC., A ) California Corporation; SCHOLASTICA ) TANG, an individual; WING YUEN ) TIMOTHY LIU, an individual; TANG ) FAMILY INVESTMENT, LLC; and DOES 1 ) through 100, Inclusive, ) ) ) Defendant(s). ) ) ) ) ) ) ) ) ) )
Case No.: BC467987 [Assigned for All Purposes to Judge Alan S. Rosenfield, Dept. 31] DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO FILE RESPONSE TO COMPLAINT [Filed Concurrently With the Answer of Scholastica Tang and Tang Family Investment, LLC.] DATE: TIME: DEPT:
August 10, 2012 1:30 p.m. 31
Complaint Filed:
August 25, 2011
24 25 26 27 28 - 1DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
1 2
I.
INTRODUCTION Defendants SCHOLASTICA TANG (“Ms. Tang”), and TANG FAMILY
3
INVESTMENT, LLC (“TFI”) request that the Court exercise its power to set aside the entry of
4
default against Ms. Tang and TFI because Ms. Tang and TFI’s failure to file a responsive
5
pleading to the Complaint was due to its mistake, inadvertence, surprise and excusable neglect.
6
TFI’s co-defendant Joseph Trejo (“Defendant Trejo”) misled it by representing to it that he had
7
obtained counsel for the defendants and that the legal matter was being taken care of. When TFI
8
discovered that Defendant Trejo’s representations were false, it promptly obtained counsel and
9
now moves to set aside the entry of default against it. Ms. Tang and TFI attach hereto a copy of
10 11
their proposed answer to the Complaint of Plaintiff TAMARA WILKINS (“Plaintiff”). Plaintiff contends that she invested money with “Joint Venture Partnership” (“JVP”), but
12
does not contend that Ms. Tang or TFI executed any written agreement, received any monies
13
from Plaintiff directly or otherwise engaged in any wrongful conduct. In fact, Plaintiff makes no
14
specific allegations regarding Ms. Tang and TFI at all in her Complaint. Indeed, Ms. Tang and
15
TFI did not receive any money from Plaintiff directly or indirectly and justice requires that these
16
Defendants have an opportunity to defend against the claims raised in the Complaint and to have
17
the matter decided on its merits. Code of Civil Procedure § 473(b) vests this Court with the
18
power to relieve Ms. Tang and TFI from default and both have satisfied the requisite showings
19
for such relief.
20
Plaintiff articulates a timeline of events in her opposition, but cannot contradict Ms.
21
Tang’s assertion that Defendant Trejo promised and both Ms. Tang and TFI believed Defendant
22
Trejo and relied on his promises to obtain counsel to represent them in this matter. This was true
23
even after the Case Management Conference (Opposition p. 3:25-28), and the subsequent
24
settlement conference between the pro per Defendants and Mr. Sawkins in April 2012. (Tang
25
Decl. ¶ 5.) Indeed, Tang lost confidence in Defendant Trejo’s representations after the matter
26
did not settle in April and Defendant Trejo could not confirm the retention of counsel for Ms.
27
Tang and TFI. (Id.) Ms. Tang then retained counsel for herself and TFI and filed the instant
28
motion seeking relief of court. (Id.) - 2DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
1
Reginald Roberts, Jr., of SANDERS ROBERTS LLP, contacted Plaintiff’s counsel,
2
Kevin B. Sawkins of SAWKINS & ALBERT, to seek relief from entry of default. Mr. Sawkins
3
refused even the professional courtesy of a return phone call and, as of the date of the filing of
4
this Reply, no one from the office of Sawkins & Albert has returned a call. (Roberts Decl. ¶ 3.)
5
Plaintiff would not stipulate to the requested relief and now opposes the motion for relief
6
because the only way for Plaintiff to prevail against Ms. Tang and TFI is to deny them an
7
opportunity to defend against Plaintiff’s meritless claims. It appears that Plaintiff, like Ms. Tang
8
and TFI, was misled by Defendant Trejo regarding the matters at issue in the Complaint. Ms .
9
Tang and TFI now move this Court to follow public policy that favors the resolution of
10
controversies based on the merits. Berman v. Klassman, 17 Cal.App.3d 900, 909 (1971).
11
This case is still in the pleading stage. Plaintiff will suffer no prejudice when the Court
12
sets aside the default entered against Ms. Tang and TFI. Plaintiff, in opposing the Motion to Set
13
Aside Default, does not argue that she will suffer prejudice if the Court sets aside the default
14
because she cannot make such a claim in good faith.
15
II.
DEFENDANTS TANG AND TFI SATISFY ALL REQUIREMENTS NECESSARY
16
TO SET ASIDE THE DEFAULT
17
Plaintiff agrees that the Court has the authority to set aside the default as requested if the
18
three conditions are met. “To set aside a judgment based upon extrinsic mistake one must satisfy
19
three elements. First, the defaulted party must demonstrate that it has a meritorious case.
20
Second, the party seeking to set aside the default must articulate a satisfactory excuse for not
21
presenting a defense to the original action. Last, the moving party must demonstrate diligence in
22
seeking to set aside the default once ... discovered.” Rappleyea v. Campbell, (1994) 8 Cal.4th
23
975, 982, quoting Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147–1148. Ms. Tang and TFI
24
satisfied each of the aforementioned requirements.
25
Both Ms. Tang and TFI have meritorious defenses against Plaintiff’s claims. Indeed,
26
Plaintiff did not and cannot allege any specific misconduct attributable to Ms. Tang or TFI. The
27
absence of a single factual allegation in the Complaint concerning specific conduct by Ms. Tang
28
or TFI supports their position that both have meritorious defenses. Ms. Tang and TFI have - 3DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
1
attached hereto a copy of their proposed Answer to Plaintiff’s Complaint setting forth multiple
2
defenses to Plaintiff’s claims against them. At this stage in the litigation, public policy favors a
3
disposition that will allow Ms. Tang and TFI to resolve the matters at issue on their merits.
4
Berman v. Klassman, 17 Cal.App.3d 900, 909 (1971). Plaintiff failed to address this critical
5
issue in her Opposition because the policy weighs heavily in favor of setting aside the default as
6
requested.
7
Furthermore, Ms. Tang and TFI relied on the misrepresentations of Defendant Trejo
8
regarding his alleged efforts to retain counsel to defend against the claims raised by Plaintiff
9
against Ms. Tang and TFI. Defendant Trejo assured Ms. Tang and TFI that he would obtain
10
legal counsel to assist with the legal matter and assured Ms. Tang and TFI that they did not need
11
to take any actions related to the lawsuit. (Tang Decl. ¶ 3.) Ms. Tang and TFI believed
12
Defendant Trejo and relied on his promises to obtain counsel to represent the Defendants. (Tang
13
Decl. ¶ 3.)
14
Only after the failed settlement with Plaintiff’s counsel did Ms. Tang realize that Mr.
15
Trejo was not going to retain counsel. By the time TFI realized that Defendant Trejo misled it
16
and did not retain counsel or otherwise take any steps to protect its interest in the action, the
17
statutory time to file a responsive pleading had passed. (Tang Decl. ¶ 6.) The extrinsic fraud
18
and mistake provide a valid basis for relief from entry of default against TFI. Engaging in a
19
settlement conference as an unrepresented party and sending counsel a case excerpt that
20
references Ms. Tang as a consultant does not eliminate the extrinsic fraud perpetrated by
21
Defendant Trejo on Ms. Tang and TFI. Accordingly, Ms. Tang and TFI urge this Court
22
respectfully to grant the requested relief from entry of default and to resolve this matter on its
23
merits.
24
Finally, Plaintiff ignores the law regarding the requested relief that supports relief if the
25
application is made within six months of entry of default. CCP 473(b). Relief under this
26
provision of 473(b) is mandatory if the conditions are fulfilled. Matera v. McLeod, 145
27
Cal.App.4th 44, 63 (Cal.App. 2 Dist., 2006). Ms. Tang and TFI filed their requests for relief
28
from default approximately one hundred six days from the entry of default. In light of these - 4DEFENDANT SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC’S REPLY IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
ATTACHMENT:
ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1 2 3 4 5 6
JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Defendants SCHOLASTICA TANG, TANG FAMILY INVESTMENT, LLC
7 8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES-CENTRAL DISTRICT
10 11 12 13 14 15 16 17 18 19
TAMARA WILKINS, an individual,
) ) Plaintiff, ) ) vs. ) ) JOSEPH FRANCIS TREJO, an individual; ) ASTON ENZO INVESTMENTS, INC., A ) ) California Corporation; SCHOLASTICA ) TANG, an individual; WING YUEN ) TIMOTHY LIU, an individual; TANG FAMILY INVESTMENT, LLC; and DOES 1 ) ) through 100, Inclusive, ) ) Defendants. ) )
Case No.: BC467987 [Assigned for All Purposes to Judge Alan S. Rosenfield, Dept. 31] ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC Complaint Filed:
August 25, 2011
20 21
ANSWER AND AFFIRMATIVE DEFENSES
22
Defendants SCHOLASTICA TANG and TANG FAMILY INVESTMENT, LLC
23
(“Defendants”) hereby answer the complaint of Plaintiff TAMARA WILKINS (“Plaintiff”) as
24
follows:
25 26
1.
The answering Defendants deny, generally and specifically, each and every
allegation contained in the Plaintiff’s complaint.
27 28 - 1ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1
FIRST SEPARATE AND AFFIRMATIVE DEFENSE
2
(Fails To State A Cause Of Action)
3 4
2.
The complaint fails to allege facts sufficient to state a cause of action or a claim
upon which relief could be granted.
5
SECOND SEPARATE AND AFFIRMATIVE DEFENSE
6
(Fails To Allege With Sufficient Specificity)
7 8
3.
The first cause of action of the complaint fails to allege fraud with sufficient
specificity.
9
THIRD SEPARATE AND AFFIRMATIVE DEFENSE
10
(Attorney’s Fees)
11 12
4.
The complaint fails to state facts sufficient to justify an award of attorney’s fees to
the Plaintiff.
13
FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
14
(Release and Waiver)
15
5.
The answering Defendants allege that Plaintiff’s actions constituted a full release
16
and waiver by Plaintiff of any and all claims which Plaintiff may have against the answering
17
Defendants.
18
FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
19
(Unclean Hands)
20
6.
The answering Defendants allege that to the extent the Plaintiff seeks equitable
21
relief, Plaintiff’s inequitable conduct constitutes unclean hands and therefore bars the granting of
22
relief to Plaintiff herein.
23
SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
24
(Statute of Limitations)
25
7.
The answering Defendants are informed and believe and thereon allege that if
26
there presently exists or ever existed, any or all of the alleged rights, claims or obligations which
27
Plaintiff seeks by way of her complaint, each and every cause of action in the complaint is barred
28
by the applicable sections of the California Code of Civil Procedure. - 2ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1
SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
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(Waiver)
3 4
8.
The Plaintiff, by her conduct, has waived all the alleged claims set forth in the
complaint.
5
EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
6
(Estoppel)
7 8
9.
The Plaintiff is estopped, by reason of her conduct, from asserting any of the
claims set forth in her complaint.
9
NINTH SEPARATE AND AFFIRMATIVE DEFENSE
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(Pari Delicto)
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10.
The answering Defendants allege that the Plaintiff herein and each and every
12
purported cause of action in the complaint are barred because Plaintiff has engaged in acts and
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courses of conduct which rendered them in pari delicto.
14
TENTH SEPARATE AND AFFIRMATIVE DEFENSE
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(Offset)
16 17
11.
The answering Defendants have valid claims against the Plaintiff, and are entitled
to offset the value of those claims against the value, if any, of the Plaintiff’s claims.
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ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
19
(Comparative Fault)
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12.
Any recovery to which the Plaintiff might otherwise have been entitled based
21
upon any claim of alleged negligence must be proportionally reduced by reason of the Plaintiff’s
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own comparative negligence. TWELFTH AFFIRMATIVE DEFENSE
23 24
13.
Defendant is informed and believes that Plaintiff ‘s failed to exercise ordinary
25
care, caution or prudence to avoid the damages complained of, and that such damages, if any,
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were directly and proximately contributed to and caused by Plaintiff.
27 28 - 3ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
1
THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
2
(Contributory Fault)
3
14.
If the Plaintiff suffered any loss or damage as alleged in her complaint, such loss
4
or damage was legally and proximately caused and contributed to by persons or entities other
5
than the answering Defendants.
6
FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
7
(Failure to Mitigate)
8 9
15.
The Plaintiff’s claims are barred, in whole or in part, because of her failure to take
reasonable steps to mitigate damages.
10
FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
11
(Anticipatory Repudiation)
12
16.
The answering Defendants are informed and believe and on such information and
13
belief allege that Plaintiff breached her contract, if any, with Defendants, and that by reason of
14
said breach of contract, Defendants have been excused of their duties to perform all obligations
15
set forth in said contract.
16
SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
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(Breach of Covenant Good Faith and Fair Dealing)
18
17.
The Plaintiff is barred from any right to relief against the answering Defendants
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because of her own breaches of the implied covenant of good faith and fair dealing inherent in all
20
contractual relationships.
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SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
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(Intervening Cause)
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18.
Any damages alleged to have been sustained by the Plaintiff were the result of
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intervening or superseding causes, and the actions of third parties, precluding any liability on the
25
part of the answering Defendants.
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EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
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(Ratification)
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19.
The Plaintiff is barred from any right to recovery because she has expressly
- 4ANSWER OF DEFENDANTS SCHOLASTICA TANG AND TANG FAMILY INVESTMENT, LLC
