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This case was last updated from Los Angeles County Superior Courts on 04/10/2016 at 19:07:43 (UTC).

JUI-CHIEN LIN VS ROBERT CHIU

Case Summary

On 02/21/2014 JUI-CHIEN LIN filed a Contract - Other Contract lawsuit against ROBERT CHIU. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judge overseeing this case is OKI, DAN THOMAS. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****6675

  • Filing Date:

    02/21/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

OKI, DAN THOMAS

 

Party Details

Plaintiff

LIN JUI-CHIEN

Defendants

CHIU ANITA L.

CHIU ROBERT T.

COBB CHARLES D.

GOLDEN RESTAURANT LLC.

THE ANITA L. CHIU QUALIFIED PERSONAL

THE ROBERT T. CHIU QUALIFIED PERSONAL

Attorney/Law Firm Details

Plaintiff Attorney

LIN MAXWELL E.

Defendant Attorney

CALDERON DAVID R. ESQ.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 03/23/2016
  • Stipulation (TO CONTINUE THE MAY 10 2016 TRIAL DATE ) Filed by Attorney for Defendant

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  • 03/23/2016
  • Order (ON STIPULATION TO CONTINUE THE MAY 10, 2016 TRIAL DATE ) Filed by Attorney for Defendant

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  • 08/14/2015
  • Notice ( of pending action ) Filed by Attorney for Plaintiff

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  • 07/29/2015
  • Answer to Second Amended Complaint Filed by Attorney for Defendant

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  • 07/14/2015
  • Reply To Motion ( to plaintiff's opposition to demurrer to second amended complaint ) Filed by Attorney for Defendant

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  • 07/07/2015
  • Opposition ( TO DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES ) Filed by Attorney for Plaintiff

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  • 06/15/2015
  • Demurrer Filed by Attorney for Defendant

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  • 02/13/2015
  • Notice (re: Continuance of Hearing ) Filed by Attorney for Plaintiff

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  • 02/04/2015
  • Notice (RESETTING STA.CONFER BK ) Filed by Attorney for Defendant

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  • 01/29/2015
  • Notice of Hearing Filed by Court

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10 More Docket Entries
  • 06/06/2014
  • Statement-Case Management Filed by Attorney for Plaintiff

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  • 06/06/2014
  • Notice of Continuance Filed by Attorney for Plaintiff

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  • 06/03/2014
  • Statement-Case Management Filed by Attorney for Defendant

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  • 05/30/2014
  • Notice of Hearing Filed by Court

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  • 05/14/2014
  • Rtn of Service of Summons & Compl Filed by Attorney for Plaintiff

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  • 05/01/2014
  • Demurrer Filed by Attorney for Defendant

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  • 05/01/2014
  • Request for Judicial Notice Filed by Attorney for Defendant

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  • 04/09/2014
  • OSC-Failure to File Proof of Serv Filed by Clerk

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  • 02/24/2014
  • Notice-Case Management Conference Filed by Clerk

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  • 02/21/2014
  • Complaint Filed

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Tentative Rulings

Case Number: KC066675    Hearing Date: November 18, 2020    Dept: J

HEARING DATE: Wednesday, November 18, 2020

NOTICE: OK

RE: Lin v. Chiu, et al. (KC066675)

______________________________________________________________________________

 

Plaintiff/Judgment Creditor Jui-Chien Lin’s MOTION FOR CHARGING ORDER

Responding Party: Defendant, Robert T. Chiu

Tentative Ruling

Plaintiff/Judgment Creditor Jui-Chien Lin’s Motion for Charging Order is GRANTED.

Background

Plaintiff Jui-Chien Lin (“Plaintiff”) alleges as follows: In or about September 2004, Plaintiff entered into an Agreement to Form a California Limited Liability Company (“Agreement”) with Robert T. Chiu (“R. Chiu”) and Charles D. Cobb (“Cobb”) for the purpose of constructing and operating a Burger King restaurant or similar restaurant. Pursuant to the Agreement, Plaintiff was to invest $1 million into the business; said investment could be used to acquire a green card pursuant to the EB-5 investor visa program. Plaintiff contributed $1 million and owned 30% interest in the enterprise; R. Chiu and Cobb contributed franchise rights and operating experience and owned 35% each. Plaintiff had no right to claim any revenues derived from the business of the LLC or to bear any losses, and was to receive $40,000.00/year to be paid quarterly during the 4th and 5th year of the Agreement. At the end of the five-year term, R. Chiu and Cobb were obligated to purchase all of Plaintiff’s interest in the business for $1 million. Plaintiff was not paid in accordance with the Agreement term. On March 7, 2013, Plaintiff discovered that the LCC had been “converted out” without Plaintiff’s consent. On September 19, 2014, Plaintiff filed a Second Amended Complaint, asserting causes of action against Defendants R. Chiu, Cobb, Anita L. Chiu, the Anita L. Chiu Qualified Personal Residence Trust, the Robert T. Chiu Qualified Personal Residence Trust, Golden Restaurant, LLC (collectively, “Defendants”) and Does 1-10 for:

  1. Breach of Written Contract

  2. Breach of Operating Agreement

  3. Fraud/Misrepresentation

  4. Negligent Misrepresentation

  5. Breach of Fiduciary Duties

  6. Set Aside Fraudulent Transfers

  7. Conspiracy

  8. Rescission of Contract

  9. Rescission of Operating Agreement

  10. Accounting

  11. Equitable Relief—Unjust Enrichment

  12. Declaratory Relief

    On May 18, 2017, Plaintiff dismissed his second, third and tenth causes of action, without prejudice.

    On May 18, 2017, this matter proceeded to court trial. On May 22, 2017, the court found in favor of Plaintiff and against R. Chiu on the first cause of action, found in favor of all other remaining defendants on the fourth through ninth, eleventh and twelfth causes of action and against Plaintiff and found Plaintiff was the prevailing party.

    On August 10, 2017, the “Statement of Decision” and “Judgment After Trial by Court” were filed. On September 11, 2017, Defendants filed their “Notice of Appeal.” On July 15, 2019, the remittitur was filed (affirmed).

Legal Standard

“If a money judgment is rendered against a partner or member but not against the partnership or limited liability company, the judgment debtor’s interest in the partnership or limited liability company may be applied toward the satisfaction of the judgment by an order charging the judgment debtor’s interest pursuant to Section 15907.3, 16504, or 17705.03 of the Corporations Code.” (Code Civ. Proc., § 708.310.)

“On application by a judgment creditor of a member or transferee, a court may enter a charging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment. A charging order constitutes a lien on a judgment debtor’s transferable interest and requires the limited liability company to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor.” (Corp. Code § 17705.03, subd. (a).)

“To the extent necessary to effectuate the collection or distributions pursuant to a charging order in effect under subdivision (a), the court may do any of the following: (1) Appoint a receiver of the distributions subject to the charging order, with the power to make all inquiries the judgment debtor might have made. (2) Make all other orders necessary to give effect to the charging order. (3) Upon a showing that distributions under a charging order will not pay the judgment debt within a reasonable time, foreclose the lien and order the sale of the transferable interest. The purchaser at the foreclosure sale obtains only the transferable interest, does not thereby become a member, and is subject to Section 17705.02.” (Corp. Code § 17705.03, subd. (b).)

Discussion

Plaintiff/Judgment Creditor (“Judgment Creditor”) moves the court for an order charging R. Chiu’s interest in the limited liability company known as ABC Capital Holdings, LLC (“ABC”) and directing ABC to pay any and all profits, distributions, disbursements or other payments due to R. Chiu to Judgment Creditor in order to satisfy the judgment entered by the court in this action.

Request for Judicial Notice

The court grants Judgment Debtor’s request for judicial notice of Exhibits C (i.e., “Application to Register a Foreign Limited Liability Company” filed July 22, 2011 with the California Secretary of State for ABC) and D (i.e., “Limited Liability Company Articles of Organization” filed February 22, 2006 with the California Secretary of State for ABC, the “Limited Liability Company Certificate of Amendment” filed June 9, 2011 with the California Secretary of State for ABC, the “Statement[s] of Information” filed June 17, 2011, May 11, 2015 and April 22, 2019 with the California Secretary of State for ABC, and the “Certificate of Conversion” filed July 22, 2011 with the California Secretary of State for ABC.)

Evidentiary Objections

R. Chiu’s evidentiary objections to the Declaration of Maxwell E. Lin (“Lin”) are overruled.

Merits

 

On August 10, 2017, the court entered judgment against R. Chiu and in favor of Judgment Creditor in the sum of $1,034,151.78. (Lin Decl., ¶¶2-3, Exh. A.) Chiu has exhausted his rights to appeal and the judgment is now final. (Id., ¶2.) Chiu is a member of ABC. (Id., ¶4, Exh. B.) No part of the judgment has been paid, and the sum of $1,331,422.12, which includes post-judgment interest and costs to date, remains unsatisfied. (Id., ¶7.)

The motion is granted.

Case Number: KC066675    Hearing Date: August 13, 2020    Dept: J

HEARING DATE: Thursday, August 13, 2020

NOTICE: OK[1]

RE: Lin v. Chiu, et al. (KC066675)

______________________________________________________________________________

 

Plaintiff/Judgment Creditor Jui-Chien Lin’s MOTION FOR ASSIGNMENT ORDER AND RESTRAINING ORDER

Responding Party: Defendant, Robert T. Chiu

Tentative Ruling

Plaintiff/Judgment Creditor Jui-Chien Lin’s Motion for Assignment Order and Restraining Order is DENIED.

Background

Plaintiff Jui-Chien Lin (“Plaintiff”) alleges as follows: In or about September 2004, Plaintiff entered into an Agreement to Form a California Limited Liability Company (“Agreement”) with Robert T. Chiu (“R. Chiu”) and Charles D. Cobb (“Cobb”) for the purpose of constructing and operating a Burger King restaurant or similar restaurant. Pursuant to the Agreement, Plaintiff was to invest $1 million into the business; said investment could be used to acquire a green card pursuant to the EB-5 investor visa program. Plaintiff contributed $1 million and owned 30% interest in the enterprise; R. Chiu and Cobb contributed franchise rights and operating experience and owned 35% each. Plaintiff had no right to claim any revenues derived from the business of the LLC or to bear any losses, and was to receive $40,000.00/year to be paid quarterly during the 4th and 5th year of the Agreement. At the end of the five-year term, R. Chiu and Cobb were obligated to purchase all of Plaintiff’s interest in the business for $1 million. Plaintiff was not paid in accordance with the Agreement term. On March 7, 2013, Plaintiff discovered that the LCC had been “converted out” without Plaintiff’s consent. On September 19, 2014, Plaintiff filed a Second Amended Complaint, asserting causes of action against Defendants R. Chiu, Cobb, Anita L. Chiu, the Anita L. Chiu Qualified Personal Residence Trust, the Robert T. Chiu Qualified Personal Residence Trust, Golden Restaurant, LLC (collectively, “Defendants”) and Does 1-10 for:

  1. Breach of Written Contract

  2. Breach of Operating Agreement

  3. Fraud/Misrepresentation

  4. Negligent Misrepresentation

  5. Breach of Fiduciary Duties

  6. Set Aside Fraudulent Transfers

  7. Conspiracy

  8. Rescission of Contract

  9. Rescission of Operating Agreement

  10. Accounting

  11. Equitable Relief—Unjust Enrichment

  12. Declaratory Relief

    On May 18, 2017, Plaintiff dismissed his 2nd, 3rd and 10th causes of action, without prejudice.

    On May 18, 2017, this matter proceeded to court trial. On May 22, 2017, the court found in favor of Plaintiff and against R. Chiu on the first cause of action, found in favor of all other remaining defendants on the fourth through ninth, eleventh and twelfth causes of action and against Plaintiff and found Plaintiff was the prevailing party.

    On August 10, 2017, the “Statement of Decision” and “Judgment After Trial by Court” were filed. On September 11, 2017, Defendants filed their “Notice of Appeal.” On July 15, 2019, the remittitur was filed (affirmed).

Legal Standard

Upon application of a judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments. (CCP § 708.510(a).)

The court’s order may assign to the judgment creditor the judgment debtor’s right to receive the following types of payments: (1) Wages due from the federal government that are not subject to withholding under an earnings withholding order. (2) Rents. (3) Commissions. (4) Royalties. (5) Payments due from a patent or copyright. (6) The loan value of an insurance policy. (CCP § 708.510(a).)

In determining whether to order an assignment or the amount of an assignment, the court may consider all relevant factors, including the following: (1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported, in whole or in part, by the judgment debtor. (2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support. (3) The amount remaining due on the money judgment. (4) The amount being or to be received in satisfaction of the right to payment that may be assigned.” (CCP § 708.510(c).)

A right to payment may be assigned only to the extent necessary to satisfy the money judgment. (CCP § 708.510(d).) An assignment of earnings or periodic payments under a pension or retirement plan may not exceed the amount that may be withheld from a like amount of earnings under the Wage Garnishment Law. (CCP § 708.510(e).) When a specific amount of the payment to be assigned is exempt from the enforcement of a money judgment by statute, the assigned amount may not exceed the amount by which the payment exceeds the exempt amount. (CCP § 708.510(f).)

A judgment creditor who has filed an application for an assignment order may also file an application for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment for which the assignment is sought. The application must be made on noticed motion if the court so directs or a court rule so requires; otherwise, it may be made ex parte. (CCP § 708.520(a).) The court may issue a restraining order upon a showing of need. The court, in its discretion, may require the judgment creditor to provide an undertaking. (CCP § 708.520(b).)

Discussion

Plaintiff/Judgment Creditor (“Judgment Creditor”) moves the court for an order directing that Defendant/Judgment Debtor R. Chiu (“Judgment Debtor”) and any third party obligor assign Judgment Debtor’s rights to payment due from ABC Capital Holdings, LLC (“ABC”), Judgment Debtor’s business, to Judgment Creditor in order to fully pay and satisfy the judgment entered by the court in Judgment Creditor’s favor in this action. Judgment Creditor also seeks a temporary restraining order prohibiting Judgment Debtor from transferring, assigning or otherwise disposing of his right to payment.

Evidentiary Objections

Judgment Debtor’s evidentiary objection is sustained.

Merits

The motion is denied. Judgment Creditor has not demonstrated that Judgment Debtor has any assignable payments under CCP § 708.510. Judgment Creditor has merely established that Judgment Debtor testified during his October 3, 2019 judgment debtor’s examination that owns a 43% interest in ABC, and that ABC owns a business rental property located at 1188 East Yorba Linda Blvd., Placentia, CA. (Lin Decl., ¶6, Exh. D.) Judgment Creditor’s recourse, as pointed out by Judgment Debtor, is to seek a charging order pursuant to Corporations Code § 17705.03 directing ABC to pay any and all profits, distributions, disbursements or other payments due to Judgment Debtor until the judgment is satisfied.


[1] Motion #1 was filed on February 14, 2020 (mail-served February 13, 2020) and originally set for hearing on May 14, 2020. On March 26, 2020, the May 14, 2020 hearing was continued, on the court’s own motion, to August 13, 2020 at 8:30 a.m.; notice was provided to all counsel. Motion #2 was filed (and mail-served) on April 21, 2020. On April 22, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” was filed, in which the court, on its own motion, set the hearing on Motions #1 and #2 for August 13, 2020 at 10:00 a.m.; notice was provided to all counsel. On May 7, 2020, moving party on Motion #2 filed (mail-served May 6, 2020) a “Notice of Continuance of Hearing on Motion to Quash or Modify Deposition Subpoena for Production of Business Records and Request for Protective Order,” advising therein of the August 13, 2020 date and time.

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