This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 01:20:48 (UTC).

CHUNPING CONG VS JASON TSAO

Case Summary

On 12/14/2016 CHUNPING CONG filed a Property - Other Property Fraud lawsuit against JASON TSAO. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are PETER A. HERNANDEZ and DUKES, ROBERT A.. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8926

  • Filing Date:

    12/14/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PETER A. HERNANDEZ

DUKES, ROBERT A.

 

Party Details

Plaintiffs and Cross Defendants

CONG CHUNPING

C & L MARBLE PRODUCTS

Defendants

CAO MATTHEW

CAO MINGXIU

TSAO JASON

Cross Plaintiff and Defendant

TSAO JASON

Cross Defendants and Plaintiffs

CAO LIREN

CONG CHUNPING

C&L MARBLE PRODUCTS INC. A DISSOLVED CALIFORNIA CORPORATION

CAO BRIAN LIFU

C & L MARBLE PRODUCTS

CAO MINGXIU AKA MATTHEW CAO

Attorney/Law Firm Details

Cross Defendant and Plaintiff Attorney

TIEDT JOHN E. ESQ.

Defendant and Cross Plaintiff Attorneys

LLOREDA CARLOS

TIEDT JOHN EDWARD ESQ.

ALVAREZ-GLASMAN ARNOLD M.

OWENS STEPHEN THOMAS

 

Court Documents

Unknown

2/20/2018: Unknown

Notice of Change of Address or Other Contact Information

9/26/2018: Notice of Change of Address or Other Contact Information

Notice of Case Reassignment and Order for Plaintiff to Give Notice

9/27/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Stipulation and Order

12/4/2018: Stipulation and Order

Motion for Leave to Amend

1/17/2019: Motion for Leave to Amend

Motion for Leave to Amend

1/18/2019: Motion for Leave to Amend

Opposition

1/24/2019: Opposition

Notice

1/28/2019: Notice

Opposition

1/29/2019: Opposition

Notice

1/30/2019: Notice

Reply

1/31/2019: Reply

Notice of Ruling

2/6/2019: Notice of Ruling

Minute Order

2/7/2019: Minute Order

Substitution of Attorney

3/8/2019: Substitution of Attorney

Request for Refund / Order

3/25/2019: Request for Refund / Order

Answer

3/29/2019: Answer

Notice

4/3/2019: Notice

Request for Dismissal

4/12/2019: Request for Dismissal

8 More Documents Available

 

Docket Entries

  • 04/12/2019
  • Request for Dismissal; Filed by CHUNPING CONG (Plaintiff)

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  • 04/03/2019
  • Notice (Notice of Unavailability); Filed by JASON TSAO (Defendant)

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  • 03/29/2019
  • Answer; Filed by CHUNPING CONG (Plaintiff); Mingxiu Cao (Defendant)

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  • 03/26/2019
  • at 08:30 AM in Department O, Peter A. Hernandez, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 03/25/2019
  • Request for Refund / Order; Filed by Mingxiu Cao (Defendant)

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  • 03/11/2019
  • at 08:30 AM in Department O, Peter A. Hernandez, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 03/08/2019
  • Substitution of Attorney; Filed by JASON TSAO (Defendant)

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  • 03/01/2019
  • at 08:30 AM in Department O, Peter A. Hernandez, Presiding; Hearing on Motion for Leave to Amend (Cross-Complaint) - Held - Advanced and Heard

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  • 02/19/2019
  • at 08:30 AM in Department O, Peter A. Hernandez, Presiding; Hearing on Motion to Compel Further Discovery Responses

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  • 02/11/2019
  • at 08:30 AM in Department O, Peter A. Hernandez, Presiding; Hearing on Motion for Leave to Amend (Cross-Complaint) - Not Held - Continued - Court's Motion

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127 More Docket Entries
  • 02/10/2017
  • Demurrer; Filed by JASON TSAO (Defendant)

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  • 02/10/2017
  • Demurrer; Filed by Attorney for Defendant

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  • 01/13/2017
  • Notice of Pending Action; Filed by Attorney for Plaintiff

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  • 01/13/2017
  • Notice of Lis Pendens; Filed by Plaintiff

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  • 01/11/2017
  • Rtn of Service of Summons & Compl; Filed by Attorney for Plaintiff

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  • 01/11/2017
  • Rtn of Service of Summons & Compl; Filed by CHUNPING CONG (Plaintiff); C & L MARBLE PRODUCTS (Plaintiff)

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  • 12/19/2016
  • Notice-Case Management Conference; Filed by Clerk

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  • 12/19/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 12/14/2016
  • Complaint; Filed by null

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  • 12/14/2016
  • Complaint Filed

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Tentative Rulings

Case Number: KC068926    Hearing Date: February 16, 2021    Dept: O

1. Defendant Jason Tsao’s motion for summary judgment/adjudication is DENIED.

Defendant Jason Tsao (“Defendant”) moves for summary judgment and/or adjudication of issues per CCP § 437c against Plaintiff ChunPing Cong (“Plaintiff”).

Request for Judicial Notice

Defendant’s request for judicial notice of Exhibit 1 and 3 are GRANTED. (Evid. Code §§ 452, 453.)

The court cannot take judicial notice of Exhibits 2, 4 and 5 because they are not documents that are either of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, nor capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452; see also Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)

Evidentiary Objections

Legal Standard on Motion for Summary Judgment/Adjudication

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP § 437c(p)(2).) “A defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action.” (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186.) The court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Moving parties' own evidence, revealing triable issues of material fact, may support denial of a motion for summary judgment. (Simmons v. Cal. Coastal Complaint (1981) 124 Cal.App.3d 790, 797 ("[T]he presence of conflicting inferences must be taken into account in testing both whether a prima facie case to support a judgment has been made and whether any issues of fact are presented for resolution as a result of opposition filings"); Sesma v. Cueto (1982) 129 Cal.App.3d 108, 114 (moving party's own records revealed contrary inferences); Maxwell v. Colburn (1980) 105 Cal. App. 3d 180, 185 (reasonable inferences of negligence inferred from moving parties' own declarations).)

Legal Standard on Statute of Limitations

A claim breach of written contract has a statute of limitations of 4 years. (CCP § 337.) A claim for a breach of oral contract has a statute of limitations of 2 years. (CCP § 339, subd. (1).)

However, the delayed discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 317.) Under the discovery rule, suspicion of one or more of the elements of a cause of action coupled with knowledge of any remaining elements will generally trigger the statute of limitations period. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) There are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App. 4th 1308, 1320.) It is a question for the trier of fact. (Ibid.) However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. (Ibid.)

MERITS

Defendant contends that Plaintiff is unable to show a triable issue of fact that the statute of limitations has run for all the causes of action named in this action.[1] This was raised as the 2nd Affirmative Defense in Defendant’s Answer. Defendant’s only contention in his Motion that is of relevance to the statute of limitations issue is such:

There can be some doubt whether the statute of limitations ran when Plaintiff left the United States in 2000, when title to the subject property was transferred to Defendant in 2002, or when Defendant took control of the subject corporation in approximately 2000, 2001. But there can be [no] doubt that it was not until December 2016 when Plaintiff first asserted her legal rights to the subject property and the subject corporation. This means, mathematically, we are looking at a period of over 10 years from the performance of these various acts till (sic) Plaintiff asserted her legal rights to title.

Defendant then lists all the statute of limitations applicable to this case, state that the time has run for each of them, and then contends that the delayed discovery principle does not apply here because Plaintiff should have discovered the transfer with reasonable diligence within the applicable statute of limitations.

All of these contentions, however, fail to state any undisputed material facts that would support this argument. While the statute of limitations was a raised defense, this was not a basis on which Defendant brought this motion for summary judgment; Defendant stated in the notice that the motion was brought because “there are no triable issue of material facts within the causes of action asserted in the Complaint against moving Defendant.” (See Notice of Motion for Summary Judgment.)

Defendant also seems to primarily base his contentions on allegations made in the Complaint rather than on facts that have some basis in evidence. In essence, Defendant brings this motion for summary judgment as if it were a renewed demurrer or motion for judgment on the pleadings, which is improper. For one, the court had already decided such an issue in a previous demurer. (See Court Order, June 1, 2017.) For another, Defendant should have actual facts to cite to rather than citing to allegations made in the operative complaint at this stage in the litigation. Indeed, Defendant’s separate statement contains no facts demonstrating undisputedly that the statute of limitations in the Complaint have run. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (setting forth the “Golden Rule” of motions for summary judgment/adjudication as follows: “all material facts must be set forth in the separate statement…if it is not set forth in the separate statement, it does not exist”), superseded by statute on other grounds.) Thus, Defendant wholly failed to meet his burden on this issue.

Motion for summary adjudication is DENIED.

Because there still exists triable facts, motion for summary judgment is also DENIED.

2. Cross-Defendants ChunPing Cong, C&L Marble Products, Inc, and MingXiu Cao’s motion for summary judgment/adjudication is GRANTED.

Cross-Defendants ChunPing Cong, C&L Marbel Products, Inc. and Ming Xiu Cao (collectively “Cross-Defendants”) move for summary judgment and/or adjudication of issues per CCP § 437c against Cross-Complainant (“Cross-Complainant”).

Evidentiary Objections

Legal Standard on Motion for Summary Judgment/Adjudication

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP § 437c(p)(2).) “A defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action.” (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186.) The court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Moving parties' own evidence, revealing triable issues of material fact, may support denial of a motion for summary judgment. (Simmons v. Cal. Coastal Complaint (1981) 124 Cal.App.3d 790, 797 ("[T]he presence of conflicting inferences must be taken into account in testing both whether a prima facie case to support a judgment has been made and whether any issues of fact are presented for resolution as a result of opposition filings"); Sesma v. Cueto (1982) 129 Cal.App.3d 108, 114 (moving party's own records revealed contrary inferences); Maxwell v. Colburn (1980) 105 Cal. App. 3d 180, 185 (reasonable inferences of negligence inferred from moving parties' own declarations).)

Legal Standard on Statute of Limitations

A claim breach of written contract has a statute of limitations of 4 years. (CCP § 337.) A claim for a breach of oral contract has a statute of limitations of 2 years. (CCP § 339, subd. (1).)

However, the delayed discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 317.) Under the discovery rule, suspicion of one or more of the elements of a cause of action coupled with knowledge of any remaining elements will generally trigger the statute of limitations period. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) There are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App. 4th 1308, 1320.) It is a question for the trier of fact. (Ibid.) However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. (Ibid.)

Furthermore, the statute of limitation may also be equitably tolled. For such equitable tolling to apply, a plaintiff must show his good faith and reasonable conduct in the delay, and that the lack of prejudice to defendants in gathering evidence to defend against the action. (See California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1594.)

MERITS

Cross-Defendants contend that Cross-Complainant is unable to show a triable issue of fact that the statute of limitations has run for all the causes of action named in this cross-action. This was raised as the 14th Affirmative Defense in Cross-Defendants’ Answer. Cross-Defendants contend that the Cross-Complainant’s action should have been filed sometime in the early 2000s at the latest.

Cross-Defendants’ point to facts showing that it is undisputed that Cross-Complainant was aware of the statute of limitations law at the time he could have properly filed this action. (Undisputed Cross-Defendant’s Separate Statement [herein “DSS”] 37.) Cross-Complainant also admitted under oath that 10 years before this present case, he knew that he had suffered “appreciable harm” and that he had to file a lawsuit within the prescribed period of time. (Undisputed DSS 38.) When asked why Cross-Complainant waited 16 years to collect the debts, he stated he thought there was little hope in collecting on the debt but gave the benefit of the doubt and assumed that the debt would just be paid. (Undisputed DSS 37.) Cross-Defendants also point to the fact that Cross-Complainant was aware that he was not going to be paid for his debts that Cross-Complainant took all of the assets of C&L Marble, including the Property that led to the underlying primary action in this case. (Undisputed DSS 29-36.) Thus, Cross-Defendants have met their burden and the burden shifts to Cross-Complainant.

Cross-Complainant contends that the doctrine of equitable tolling should apply in this case because Cross-Defendants kept “lull[ing] [him] into a false sense of security.” Cross-Defendants, through Cao, repeatedly assured Cross-Complainant that the loans would be repaid. (Cross-Complainant’s Separate Statement [herein “PSS”] B-C.) Furthermore, Cross-Complainant and Cross-Defendant Cao had a familial relationship as they were cousins; this played a strong factor in Cross-Complainant accepting Defendants’ repeated assurances of repayment. (PSS D.)

However, Cross-Complainant then oddly admits that he began collection efforts in May 2016 in the People’s Republic of China. (PSS E.) This fact appears suspect to the court because it does not show good faith and reasonable conduct in the delay, particularly because Cross-Complainant includes this statement in his separate statement, but does not offer any rationale as to why he finally decided to throw out his familial relationship factor that so long held him back from pursuing any legal collection against Cross-Defendants. In fact, while a bit ambiguous, it seems that Cross-Complainant contends that only after bringing the collection efforts in China did Cross-Defendants repudiate any obligation to repay any of Cross-Complainant’s loans. (PSS E.) Furthermore, the court cannot find any facts that would show the lack of prejudice to Cross-Defendants in gathering evidence to defend against the action due to Cross-Complainant’s delay in bringing this suit.[2]

Thus, Cross-Complainant failed to meet his burden, and summary adjudication of this issue is GRANTED.

Because there are no longer exists triable issues of fact, summary judgment is GRANTED.


[1] Defendant also makes contentions regarding the applicability of the affirmative defense of adverse possession and his separate statement seemly focus solely on this issue. However, the court cannot consider this affirmative defense because he failed to give proper notice on this issue. First, the affirmative defense of adverse possession was never raised in Defendant’s Answer. (See Defendant’s Answer.) While it is true that this was raised as an issue in Defendant’s cross-complaint, Defendant should have then brought a separate motion for summary judgement/adjudication on the First Amended Cross-Complainant as the plaintiff in that action (i.e., the cross-complainant), rather than bundle it in with this motion for summary judgment brought in his role as the Defendant. Second, this was not a stated issue in the motion’s notice, where Defendant merely reiterates his basis for the motion is that “there are no triable issue of material facts within the causes of action asserted in the Complaint against moving Defendant.” (See Notice of Motion for Summary Judgment.)

[2] In fact, Cross-Complainant admitted himself during his deposition that his own evidence in his cross-action against Cross-Defendants may have been lost in failing to timely bring this action because he also “realized there’s no point to keep calculating how much money [Cross-Complainant] was out” and that “it was just a dead-end.” (See Reply, 3:27-4:2.)

Case Number: KC068926    Hearing Date: October 15, 2020    Dept: O

Cross-Defendants ChunPing Cong, C&L Marble Products, Inc, and MingXiu Cao’s motion to bifurcate trial is GRANTED.

Merits

Under Code of Civil Procedure (“CCP”) section 1048:

The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.

(CCP § 1048(b).)

Cross-Defendants ChunPing Cong, C&L Marble Products, Inc, and MingXiu Cao (collectively “Cross-Defendants”) contend that bifurcating/severing the issue of statute of limitations will promote judicial economy and efficiency of handling this case. Cross-Complainant filed a notice of non-opposition to this motion.

Under CCP section 597, the court may bifurcate where a statute of limitations is pleaded as a defense. (CCP § 597.5.) Only after the issue raised by the statute of limitations is finally determined in favor of the plaintiff or cross-complainant would the remaining issues then be tried. (Id.) Cross-Defendants have raised the issue of statute of limitations in their answer to the cross-complaint as the 14th affirmative defense.

Accordingly, motion is GRANTED.

The Court also notes that Defendant and Cross-Complainant Jason Tsao (“Defendant Tsao”) requested in his notice of non-opposition to have this court concurrently hear his motion to bifurcate that is currently set for November 16, 2020. However, this request is essentially a request to shorten the time of notice for this motion, without properly bringing an ex parte Thus, the Court will keep the currently set hearing date for his motion. The Court will hear from the parties whether there is an agreement concerning Defendant Tsao’s request to bifuricate.

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