Xu vs. Wang

The Court sustains the demurrers to the remainder of Defendant’s affirmative defenses, because they require pleading new matter that are not responsive to any allegations in the complaint. In its opposition, Defendant argues its answer is sufficient so long as it “provides Plaintiff with notice of its defenses.” (Opp’n at pp. 6-7, citing Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) This argument is not persuasive because Doe was addressing the less particularity doctrine and whether the plaintiff was allowed to plead allegations based on information and belief. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549–550, citation omitted.) Here, there is no indication that Plaintiff would have “particularized knowledge” of the facts that could potentially support Defendant’s affirmative defenses, or that allegations on information and belief are necessary. The Code specifically requires the answer to contain “a statement of any new matter constituting a defense.” Because Defendant has alleged defenses that are outside of the matters put at issue by Plaintiff, the onus is on Defendant to plead the ultimate facts on which they are based.

For the foregoing reasons, the Court overrules the demurrers to the 1st, 2nd, 13th, 23rd, 24th, 36th, 41st, and 45th affirmative defenses in Defendant’s answer. The remainder of Plaintiff’s demurrer is sustained with 15 days leave to amend.

The order to show cause is discharged. The case management conference is continued to October 19, 2026 at 10:00 a.m. in Department C27. Each party is ordered to file a timely updated case management statement prior to this date.

Plaintiff is ordered to give notice of the ruling.

106 2023-01339201 1. Motion for Summary Judgment and/or Adjudication 2. Order to Show Cause

Xu vs. Wang 3. Ex Parte

Plaintiff Mei Xu’s motion for summary adjudication of second cause of action in her complaint against defendant Futao Wang and/or seven of Defendant’s affirmative defenses is denied.

Both Plaintiff’s and Defendant’s evidentiary objections are overruled. The court notes that neither set of objections is in the proper form. CRC 3.1354(b).

Plaintiff’s request for judicial notice is denied. There is no provision in the Evidence Code for the Court to take judicial notice of foreign laws or documents from court files outside the U.S. See Evid. Code §452(a) and (d). All but nos. 1, 15, and 16 are properly authenticate and presented as evidence, however. [See Xu Declaration (ROA #253) item nos. 2, 3, 4, 5, 8, 9, 10, 22, 12, 17, 18, 19, 20, 21, 22); Yang Declaration (ROA # 254)- item nos. 5, 6, 7, 8, 9, 12; Hsu Declaration (ROA #251) items no. 13, 14); Yang Decl. (ROA #135), ¶¶ 12, 14, 17, 21, 25, 27, item nos. 2, 4-8; Xu Decl. (ROA #131), ¶¶ 12, 14, item nos. 11 and 12.]

The Court considered the three supplemental declarations filed by Plaintiff with her original reply. [ROA ## 311, 313, 315.] Where the new evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opposition to the motion, the evidence may be properly considered. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 (stating, on anti-SLAPP motion, that “[t]o the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the limited partners' opposition.”) See also Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 99 (on MSJ, noting and considering reply declaration attacking basis for opposition expert declaration and finding expert declaration inadmissible). Plaintiff’s Supplemental Declarations present a mix of all of the above. Given the history of this motion and related rulings, the Court determined it is appropriate to consider the declarations filed on reply.

Legal Standard

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388. This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. LLP Mortg. v. Bizar (2005) 126 Cal.App.4th 773, 776. At that point, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action.” Code Civ. Proc. § 437c(p)(1).

Code of Civil Procedure section 437c(p)(1) provides that a plaintiff meets its “burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff ... has met that burden, the burden shifts to the defendant.” “[S]ummary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own

cause of action.... All that the plaintiff need do is to ‘prove[] each element of the cause of action.’ ” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff. Code Civ. Proc. §437c(f)(1). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Id.

The moving party's affidavits are strictly construed while those of the opposing party are liberally construed. Villacres v. ABM Industries, Inc., 189 Cal.App.4th at 575. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Id.

Discussion

Second Cause of Action for Recognition of Foreign Judgment by Comity Comity is the basis for recognizing foreign judgments not covered by the Uniform Foreign Money-Judgments Recognition Act. Manco Contracting Co. (W.L.L.) v. Bezdikian (2008) 45 Cal.4th 192, 198.

The Court previously sustained without leave to amend Plaintiff’s first cause of action for recognition of her judgments under the Uniform Foreign Money-Judgments Recognition Act (the “Recognition Act”), determining that Plaintiff cannot enforce her judgment under the Recognition Act but may proceed under the rule of comity. [5/17/24 Minute Order (ROA # 77) (“Although the Appellate Judgment involved issues of contract law, the RCA and SA arose from the parties’ divorce and the marital law also was implicated. [¶] Plaintiff still has a cause of action to recognize the Appellate Judgment under principles of comity . . . .”).]

Plaintiff acknowledges this in her supporting memorandum, but then cites provisions of the Recognition Act in support of her arguments. For example, Plaintiff cites the Recognition Act at Code Civil Procedure sections 1715 and 1716, and cases applying the Recognition Act, for her contention that the court “must” recognize a foreign judgment that is final, conclusive, and enforceable in the country where it was rendered. This is incorrect.

This Court may, but is not required, to execute Plaintiff’s foreign nation judgment under the doctrine of comity. In re Stephanie M. (1994) 7 Cal.4th 295, 314 (“The courts of this state may, but are not required to, execute the judgment of a foreign nation as a matter of comity.”)

The doctrine of comity prescribes that a court of this nation recognize the judgment of a court of a foreign nation when the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public policy. Hilton v. Guyot (1895) 159 U.S. 113, 202–203, 16 S.Ct. 139, 158–59, 40 L.Ed. 95; In re

Stephanie M. (1994) 7 Cal.4th at 314; Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B. (2d Cir.1987) 825 F.2d 709, 713. Extension or denial of comity is discretionary and is reviewed on an abuse of discretion standard. Remington Rand v. Business Systems, Inc. (3d Cir.1987) 830 F.2d 1260, 1266.

Plaintiff contends, and Defendant does not dispute, that the courts in China had proper jurisdiction over Defendant and the subject matter.

Generally, a foreign judgment will be recognized by a United States court if it has that effect in its country of rendition, and if it meets the United States standard of fair trial before a court of competent jurisdiction. Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 494 (citing 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 299, p. 846). A court must deny recognition of a foreign-country judgment if it finds that the entire judicial system in the foreign country where the foreign-country judgment was rendered does not provide procedures compatible with the requirements of fundamental fairness. AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 214 (applying provisions of the Recognition Act but analogizing it to pre-act law under the comity doctrine)(“ This ground tracks the Supreme Court's decision in Hilton and applies only where there are system-wide concerns with the impartial administration of justice in the foreign country.”).

Finality A foreign judgment is entitled to recognition in the United States only if the judgment is final, conclusive, and (if relevant) enforceable under the law of the country in which it was rendered. A judgment is final when it is not subject to additional proceedings in the rendering court other than execution. A judgment is conclusive when it is given effect between the parties as a determination of their legal rights and obligations. A judgment is enforceable when the legal procedures of the foreign state to ensure that the judgment debtor complies with the judgment are available to the judgment creditor to assist in collection of the judgment. The requirement of enforceability is relevant only when the judgment is one granting recovery of a sum of money. A judgment may be considered final, conclusive, and enforceable even though it is subject to appeal.

Restatement (Fourth) of Foreign Relations Law § 481(d) (2018).

Although a judgment is final, conclusive, and enforceable under the law of the country in which it was rendered, the existence of a planned or pending appeal in the foreign jurisdiction may justify a decision to stay an action to obtain recognition of a foreign judgment. The decision to stay rests in the discretion of the court from which recognition is sought. That court must take into account a multitude of factors, including the likelihood that the foreign appeal will succeed in overturning or revising the judgment at issue.

Restatement (Fourth) of Foreign Relations Law § 481(e) (2018).

According to Plaintiff, her judgment against Wang is final. [Yang Decl. (ROA #254), ¶¶ 18- 30 and Exs. 5, 8, 9, 12.]

Wang argues the judgment is not final, pointing to a judgment in another action – Judgment 5856. [See Defendant’s Material Facts (“DFM”), Issue no. 1 nos. 20-22.] Defendant does not provide Judgment 5856 in his initial opposition papers, however. [See Defendant’s Appendix of Evidence (“AOE” – ROA #301); Reply (ROA #309) at 4; Errata (ROA #305), Ex. B.]

There is thus a dispute between the parties about the effect of Judgment 5856, which is concededly in a different action. [See Reply at 4-6; Supp. Xu Decl., Ex. B; Supp. deLisle Decl. (ROA #311), ¶¶ 18-23. Compare Supp. Clarke Depo. (ROA #295), ¶¶ 8-9.] Arguably, this dispute raises a triable issue of fact on this motion.

Impartiality of Tribunal b. Impartial tribunals. Courts in the United States will not recognize foreign judgments rendered under a judicial system that does not provide impartial tribunals.

c. Procedures compatible with fundamental principles of fairness. Courts in the United States will not recognize foreign judgments rendered under a judicial system that does not provide procedures compatible with fundamental principles of fairness. Mere departures from procedures accepted as normal in the United States, however, do not necessarily depart from fundamental principles of fairness. For example, the absence of attorney cross-examination of witnesses or a foreign court's primary reliance on written depositions, rather than oral testimony, does not by itself constitute a fundamentally unfair approach to the presentation of evidence.

Restatement (Fourth) of Foreign Relations Law § 483 (2018) (bold added). See also Restatement (Fourth) of Foreign Relations Law § 484 (2018) (re integrity of system).

Plaintiff also contends that her judgments came from a judicial system that operates impartially and renders fair judgments. Plaintiff submits the deLisle Declaration in support. [See UMF (ROA #297), Issue 1 at nos. 44-50; deLisle Decl. (ROA #250) at ¶¶ 42-63.]

Defendant has presented an expert witness’s opinion to the contrary. [Clarke Decl. (ROA #163), ¶ 6.a. See also ¶¶ 7-31 and Clarke Supp. Decl. (ROA #295), ¶¶ 3, 14-31.]

Given the dueling expert declarations, there is a triable issue of fact.

First Affirmative Defense for “Failure to State a Claim” While Plaintiff moved for summary adjudication on Defendant’s first affirmative defense, she presents no argument in support of that motion. Indeed, in her supporting memorandum she states that the “the instant motion addresses only the eleventh through the fifteenth affirmative defenses.” [Motion MPA (ROA #249) at 19:24-25.] This is grounds to deny the motion as to this cause of action. Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 (trial court was justified in denying posttrial motions for failure to provide adequate memorandum; “Rule 3.1113 rests on a policy-

based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party’s theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide.”). Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. CRC 3.1113(a).

The separate statement has a section for this issue that includes 23 stated facts, with citations to evidence. But nothing about the evidence is relevant to determination whether Plaintiff has sufficiently alleged a claim.

The overruling of Defendant’s prior demurrer to the second cause of action answers the question as to whether it states a claim. But by the allegations of the defense, it is directed at the entire complaint. [ROA #79.] Nowhere in her memorandum or separate statement does Plaintiff appear to address or consider any claim but her second cause of action. As previously noted, however, she has three other causes of action for fraudulent conveyance directed against Defendant.

Second Affirmative Defense for “Unclean Hands” Plaintiff’s discussion of Defendant’s second affirmative defense in her supporting memorandum is limited to her contention that the first through the tenth affirmative defenses are not recognized as exceptions justifying non-recognition of a Chinese judgment. Hilton v. Guyot, supra, 159 U.S. at 202-03.

Again, Defendant’s answer directs this defense against the entire complaint, not just the second cause of action but Plaintiff has not addressed application of this defense to any other causes of action.

Eleventh Affirmative Defense for “Lack of Standing” Defendant’s eleventh affirmative defense appears to be primarily directed at the causes of action seeking recognition of the judgment.

Plaintiff’s arguments and evidence as to this affirmative defense are the same as those for her second cause of action. Similarly, Defendant’s arguments and evidence as to this affirmative defense are the same as those for the second cause of action.

Accordingly, the motion for summary adjudication on this affirmative defense will rise or fall with the motion as to the second cause of action.

Twelfth Affirmative Defense for “Fraud” See the discussion and recommendation for the eleventh affirmative defense.

Thirteenth Affirmative Defense for “Lack of Due Process See the discussion and recommendation for the eleventh affirmative defense.

Fourteenth Affirmative Defense for “Inadequate Notice” See the discussion and recommendation for the eleventh affirmative defense.

Fifteenth Affirmative Defense for “Public Policy” See the discussion and recommendation for the eleventh affirmative defense.

Conclusion

Based on the foregoing, the Court concludes there is, at least, a material triable issue of fact as to Plaintiff’s motion for summary adjudication.

Further, the Court’s extension of comity to a foreign judgment, which is what Plaintiff seeks in her second cause of action, is an exercise of this Court’s discretion. In re Stephanie M. (1994) 7 Cal.4th 295, 314 (“Extension or denial of comity is discretionary and is reviewed on an abuse of discretion standard.”) Such an exercise is better done on a full record where the Court may weigh the evidence.

Accordingly, the motion for summary adjudication is denied.

The order to show cause is discharged. The Court will address the Ex Parte Application at the hearing.

Defendant is ordered to give notice.

107 2023-01401848 1. Motion for Leave to File Amended Complaint 2. Order to Show Cause re: Dismissal Moayedi vs.

3. Trial Setting Conference Petrossian If counsel for Plaintiff or Yasamin Ameri do not appear, then the Motion for Order Substituting Yasamin Ameri, Successor in Interest for Deceased Plaintiff and Granting Leave to File Amended Complaint (ROA 76) is DENIED in its entirety and this matter is dismissed in its entirety without prejudice.

Should Counsel for Plaintiff or Yasamin Ameri appear at the hearing, the motion for an order substituting Yasamin Ameri (“Ameri”), as successor in interest, in place of Plaintiff Kamran Moayedi is continued to June 1, 2026 at 2:00 p.m. in Department C27 to give Plaintiff an opportunity to correct the deficiencies set forth below. The motion for leave to file an amended complaint is denied without prejudice. The trial setting conference is continued to June 1, 2026 at 2:00 p.m. in Department C27. Plaintiff’s counsel or Yasamin Ameri are ordered to file documents correcting the deficiencies noted below no later than May 22, 2025. Failure to file any documents by May 22, 2026 will result in this Court dismissing this matter without prejudice at the June 1, 2026 hearing.

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)

“The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest” must execute and file an affidavit or declaration that contains seven statements, including a statement that “[t]he affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding” and that “[n]o other person has a superior right ... to be substituted for the decedent in the pending action or proceeding.” (Code Civ. Proc., § 377.32, subd. (a).)

Code of Civil Procedure section 377.32, subdivision (a)(1)–(7), sets forth the requirements for the affidavit as follows:

(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article,