On 01/04/2017 HCT GROUP HOLDINGS LIMITED filed a Property - Other Property Fraud lawsuit against NICHOLAS GARDNER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER and MONICA BACHNER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HCT EUROPE LIMITED
HCT PACKAGING INC
HCT GROUP HOLDINGS LIMITED
HCT ASIA LIMITED
HCT PACKAGING INC.
DOES 1 TO 50
COGNISANT REAL ESTATE LLC
BROAD COURT PARTNERS LLC
HCT PACKAGING INC.
GARCIA RAINEY BLANK & BOWERBANK LLP
UNITED STATES OF AMERICA
GARCIA NORMA V.
ALMELING DAVID SEBASTIAN
TAITELMAN MICHAEL ANDREW
LORENZINI ERIC JOSEPH
SCHEPER DAVID CHARLES
ALMELING DAVID SEBASTIAN
FELDMAN KENNETH CHARLES
5/30/2019: Amended Complaint - AMENDED COMPLAINT THIRD AMENDED CROSS-COMPALINT
8/27/2019: Notice of Motion - NOTICE OF MOTION AND MOTION TO MODIFY STAY TO PERMIT THIRD PARTY DISCOVERY
9/10/2019: Notice of Joinder - NOTICE OF JOINDER (NAME EXTENSION) NOTICE OF JOINDER IN DEFENDANT'S OPPOSITION TO MOTION TO MODIFY STAY
9/23/2019: Order - RULING
10/31/2019: Notice of Change of Address or Other Contact Information
11/22/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
2/21/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
4/10/2020: Status Report - STATUS REPORT JOINT REPORT REGARDING STATUS OF STAY
6/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/15/2020
7/16/2020: Notice Re: Continuance of Hearing and Order
8/4/2020: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO INTERVENE AND STAY WITH PROPOSED ORDER
8/21/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR STAY OF PROCEEDINGS; HEARING ON EX PA...)
8/28/2020: Notice of Ruling
1/18/2018: DEFENDANT AND CROSS-COMPLAINANT NICHOLAS GARDNER AND DEFENDANTS COGNISANT LLC, COGNISANT REAL ESTATE, LLC, AND COGNISANT LIMITED'S OPPOSITION TO PLAINTIFFS' RENEWED EX PARTE APPLICATION FOR A RIGHT TO
1/18/2018: DECLARATION OF NICHOLAS GARDNER IN SUPPORT OF OPPOSITION TO PLAINTIFFS' RENEWED EX PARTE APPLICATION FOR A RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF A WRIT OF ATTACHMENT OR, IN THE ALTERNATIVE,
5/10/2018: Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION
4/17/2019: Motion for Order - MOTION FOR ORDER PERMITTING DEFENDANT TO SUBSTITUTE UNDERTAKING FOR RELEASE OF ATTACHMENT LIEN
4/18/2019: Declaration - DECLARATION OF JIANING LIU IN SUPPORT OF PLAINTIFFS' OPPOSITION IN PART TO DEFENDANTS' MOTIONS TO FILE RECORDS UNDER SEAL
Hearing09/20/2021 at 10:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing09/10/2021 at 09:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing04/14/2021 at 08:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status ConferenceRead MoreRead Less
Hearing09/09/2020 at 10:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Ex Parte Application for Leave to InterveneRead MoreRead Less
Hearing09/09/2020 at 10:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Stay of ProceedingsRead MoreRead Less
DocketNotice of Ruling; Filed by Nicholas Gardner (Cross-Complainant)Read MoreRead Less
Docketat 10:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Motion for Stay of Proceedings - Not Held - Continued - StipulationRead MoreRead Less
Docketat 10:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Ex Parte Application (to File Consolidated Brief in Excess of 15 Pages in Opposition to (1) Plaintiff's Motion to Continue Stay and (2) The United States of America's Ex Parte Application...) - Held - Motion GrantedRead MoreRead Less
Docketat 10:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Ex Parte Application (for Leave to Intervene) - Not Held - Continued - StipulationRead MoreRead Less
Docketat 10:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Ex Parte Application (for Leave File a Consolidated Opposition) - Held - Motion GrantedRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Docketat 2:40 PM in Department 72; (Affidavit of Prejudice; Case is reassigned) -Read MoreRead Less
DocketDeclaration; Filed by HCT Asia Limited (Plaintiff)Read MoreRead Less
DocketMinute order entered: 2017-01-09 00:00:00; Filed by ClerkRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketAFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (C.C.P., 170.6)Read MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by HCT Asia Limited (Plaintiff); HCT Europe Limited (Plaintiff); HCT Group Holdings Limited (Plaintiff) et al.Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by HCT Asia Limited (Plaintiff); HCT Europe Limited (Plaintiff); HCT Group Holdings Limited (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF: (1) BREACH OF DUTY OF LOYALTY (CALIFORNIA LABOR CODE SECTIONS 2854, 2859, 2860, 2861, 2863; ETCRead MoreRead Less
Case Number: BC645615 Hearing Date: December 11, 2020 Dept: 71
Superior Court of California
County of Los Angeles
HCT GROUP HOLDINGS LIMITED, a Hong Kong Corporation, for itself and its subsidiaries, et al.,
NICHOLAS GARDNER, et al.
Case No.: BC645615
Hearing Date: December 11, 2020
Defendants’ motion stay proceedings is denied except as to the depositions of Derek Chang and Cindy Lim.
Plaintiffs HCT Holdings Limited, HCT Packaging, Inc., HCT Asia Limited and HCT Europe Limited (“Plaintiffs” or “HCT”) move the court to continue the stay previously imposed on May 22, 2019 at the requests of Defendants Nicholas Gardner (“Gardner”), Derrick Chang (“Chang”), Cindy Lim (“Lim”), Cognisant LLC, (“Cognisant”), Cognisant Real Estate (“CRE”), Cognisant Limited (“CL”), and Broad Court Partners LLC (“BCP”). The United States of America (the “United States”) has intervened for the limited purpose of staying the proceedings. Gardner, Cognisant, CRE, CL and BCP (“Defendants”) oppose the motion to continue the stay.
“Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; see also C.C.P. §128.) In the seminal Keating case cited by all parties, the Ninth Circuit recognized “[i]n the absence of substantial prejudice to the rights of the parties involved, [simultaneous] parallel [civil and criminal] proceedings are unobjectionable under our jurisprudence.” (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324 “Keating”.) Nevertheless, a court may stay “civil proceedings . . . ‘when the interests of justice seem to require such action.’ ” (Id.)
“[T]he decisionmaker should consider ‘the extent to which the defendant’s fifth amendment rights are implicated.’ [Citation.] In addition, the decisionmaker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation. [Citation.]” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 (“Avant! Corp.”), citing Keating, supra, 45 F.3d at 325.)
Since initiating the instant action against Defendants on January 4, 2017, Plaintiffs have been coordinating with law enforcement to hold Gardner and Chang criminally responsible for the alleged conduct at issue in the instant matter. (Decl. of Lorenzini, ¶¶27-29.) Following a meeting between Plaintiffs’ counsel and the United States Attorney’s Office (“USAO”) on January 14, 2019, urging the filing of charges for conduct alleged in Plaintiffs’ second amended complaint, the USAO emailed Plaintiffs’ counsel stating it planned to open an investigation into the conduct described during the meeting. (Decl. of Lorenzini, ¶28.) The USAO has confirmed it is investigating Gardner for criminal violations relating to the same conduct that is the subject of this case and expects to bring criminal charges against Gardner “in the coming months.” (Decl. of Wyman, ¶ 2.) Chang and his wife Lim have entered into a settlement with Plaintiffs (Decl. of Ameling, ¶5, Exh.A), and Chang has entered into a plea agreement with the government. (Decl. of Lorenzini, ¶35.)
Plaintiffs assert that the stay is necessary to avoid Gardner’s tactic to end-run the criminal discovery process and to avoid costly one-way discovery. (Motion, pgs. 1-2.) The USAO asserts that discovery should be stayed to protect important law enforcement interests. (Ex Parte Application “Application,” pg. 2.) Gardner now believes “it is preferable to take discovery to defend himself from HCT’s claims and to prosecute his cross-claims.” (Opposition, pg. 7.) Defendants’ counsel has been in communication with the USAO and indicated in deference to the USAO’s concerns, they would not depose Chang or Lim, but wanted to depose Mr. Thorpe and Ms. Hsu. (Opposition, pg. 6, Decl. of Lorenzini, ¶¶38,41.) In addition, Defendants propose about 20 other witnesses they intend to depose, in addition to additional written discovery and document requests. (Decl. of Lorenzini, ¶¶52,53.)
Plaintiffs and the United States are not entitled to a total stay of the instant matter. First, although the court should consider the extent to which the defendant’s fifth amendment rights are implicated, in this case, the factor does not “weigh significantly in favor of either outcome,” as Gardner, whose fifth amendment rights are implicated, opposes the stay. (See SEC v. Fraser (D. Ariz. June 1, 2009) 2009 WL 15318554 at *2 n.3 [denied USAO stay request opposed by defendant]; SEC v. Balwani (N.D. Cal. June 14, 2019) 2019 WL 2491963 *4 [same].
Considering the relevant Keating factors, the stay is not necessary. The first Keating factor relates to the interests of the Plaintiffs. Plaintiffs argue that as Gardner may assert his fifth amendment rights, discovery would be one-sided. (Motion, pgs. 5-6.) First, HCT will be able to take depositions of third parties. As to Gardner, although he may choose to assert his fifth amendment rights, the assertion may expose him to an adverse inference. (See Keating, supra, 45 F.3d at 326.) This factor somewhat supports granting a stay.
The second factor weighs in favor of the Defendants. Continuing the stay would substantially prejudice Defendants as witness memories fade or witnesses become unavailable, Gardner has a strong interest in defending himself, and Gardner cannot obtain a judgment that could vacate or modify orders freezing assets. (Opposition, pgs. 18-20; Decl. of Lorenzini, ¶43.) Indeed, one witness has passed away. (Decl. of Lorenzini, ¶44.)
As to the third factor, the management of judicial resources favors lifting the stay regarding this aging case, Plaintiffs argues if federal authorities indict and convict Gardner this would resolve or simplify the case (Motion, pg. 8.) This however assumes there is neither an acquittal or a mistrial. Indeed, as recognized in Avant Corp! “Clearly, denial of the stay motion promotes the convenience of the court in the management of its cases.” (Avant Corp., supra, 79 Cal. App. 4th at 888.) Regarding the fourth factor, the interest of nonparties, no evidence has been presented regarding any burden on nonparties and as argued by the United States, “the interests of persons who are not parties are minimal.” (Application, pg. 10.) Nor does the fifth Keating factor support a stay. The United States generally asserts if Defendants are permitted to conduct discovery “such discovery would almost certainly bear on issues in the criminal case” and “[t]he public has a greater interest in preserving the integrity of the criminal investigation into a significant honest services wire fraud scheme than it does in the prompt resolution of the civil matters.” (Application, pgs. 10-122.) However the USAO has not presented any evidence or specific argument how a denying stay would prejudice the government’s investigation. As indicated by Balwani: “The Court is not unsympathetic to DOJ’s concerns that [Gardner] may attempt to overreach in civil discovery, but the Court is capable of addressing such concerns with a scalpel instead of a saw. As with potential concerns over the discovery burdens to nonparties. . . DOJ may object to any discovery requests that it believes improperly go beyond the scope of civil action. The Court will hear those objections and, if appropriate, sustain them. The fifth Keating factor does not support a stay.” (Balwani, 2019 WL 2491963 *4.)
The Court has considered these factors, and based on the foregoing, Plaintiffs’ motion to stay proceedings, joined by the United States in intervention is denied, except as to the depositions of Derek Chang and Cindy Lim.
Dated: December 11, 2020
Hon. Monica Bachner
Judge of the Superior Court
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