Case Number: KC062546 Hearing Date: March 13, 2018 Dept: J

Re: Thomas Lee v. Tony Ing (KC062546)

MOTION FOR RECONSIDERATION AND REVERSAL OF ORDER DENYING PREVIOUS MOTION TO SET ASIDE COURT JUDGMENT AGAINST TONY ING AND CANCEL ANY ABSTRACT OF JUDGMENT BASED ON SAID JUDGMENT, ON GROUNDS OF EXTRINSIC FRAUD

Moving Party: Defendant Tony Ing

Respondent: Plaintiff Thomas Lee

POS: Moving OK; Opposing OK

Plaintiff Thomas Lee (“plaintiff”) initiated this breach of oral contract action seeking $1 million in damages from defendants. Plaintiff alleged that he entered into an oral agreement under which plaintiff agreed to invest $1 million, and Defendants were to use the money to make investments in the trading of foreign currency. Defendants allegedly misappropriated the money and used it to buy two properties in La Puente, CA. The complaint, filed 11/16/11, asserts causes of action for:

Breach of Oral Contract

Fraud

Conversion

Common Counts

Conspiracy

Quasi Contractual Relief for Constructive Trust.

A judgment in favor of plaintiff was entered on 1/13/14 following a court trial. The judgment was thereafter affirmed on appeal, in which Defendant Ing represented himself. On 10/31/17, the court denied Defendant Ing’s motion to set aside judgment and cancel any abstract of judgment on grounds of extrinsic fraud; plaintiff was ordered to provide notice. On 11/7/17, plaintiff filed his “Notice of Ruling;” it had been mail-served on 11/1/17.

Defendant Tony Ing (“Ing”) moves the court, per CCP § 1008(a), for an order reconsidering and reversing its 10/31/17 order denying his motion to vacate the 1/13/14 judgment against him on equitable grounds of extrinsic fraud.

AMENDED MOTION FILED 10/18/17 AND SUPPLEMENTAL DECLARATION FILED 1/3/18:

At the outset, the court declines to consider plaintiff’s “Amended Motion for Reconsideration and Reversal of Order Denying Previous Motion to Set Aside Court Judgment Against Tony Ing and Cancel Any Abstract of Judgment Based on Said Judgment, on Grounds of Extrinsic Fraud” filed 12/18/17 and Ing’s “Supplemental Declaration Supporting his Motion for Reconsideration,” on the basis that they are untimely under CCP § 1008(a).

EVIDENTIARY OBJECTIONS:

Plaintiff Thomas Lee’s (“plaintiff”) evidentiary objections are ruled on as follows: As to Ing’s 11/10/17 declaration: Sustain as to Nos. 1 and 2; As to Ing’s 12/15/17 declaration: Sustain as to Nos. 1 and 2 – the declaration is also untimely and is not considered; and As to Ramon Barredo’s (“Barredo”) 10/21/17 declaration: Overruled as to No. 1.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” CCP § 1008(a).

The court may reconsider orders it is statutorily authorized to make after entry of judgment, such as motions to vacate, or for relief from a default judgment. D.R.S. Trading Co., Inc. v. Barnes (2009) 180 Cal.App.4th 815, 820.

“Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689).” New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212. “The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. (Baldwin v. Home savings of America (1997) 59 Cal.App.4th 1192, 1198).” Id. at 212-213.

Ing’s motion is based on evidence that could have been presented in connection with the original motion. Ing’s 11/10/17 declaration (as well as his 12/15/17 declaration, even if it were considered) attaches excerpts of his 2013 trial testimony as the basis of the “new facts” supporting his motion. Ing, however, was aware of these “new facts” at the time that he filed his previous motion. Ing also reattaches Barredo’s 6/29/17 declaration to this motion, which was previously attached to his 9/26/17 motion to set aside judgment. Although Ing now includes Barredo’s 10/21/17 declaration, wherein he vaguely attests that he was induced to submit the stipulation by plaintiff and “was financially influenced to do so,” Ing does not explain why he did not provide the court with this declaration prior to the 10/31/17 hearing on his motion to set aside judgment.

Even if the court were to consider Ing’s “new facts,” the outcome of the motion would be the same. Although neither party has attached the stipulation, the substance of same was that Ing had not used Lee’s $1 million to make investments for Lee’s benefit. Ing claims that the stipulation prevented him from introducing evidence at trial to dispute Lee’s position that Ing failed to invest the $1 million for Lee’s benefit, but instead used the funds for Ing’s personal purposes. The 11/27/13 Statement of Decision reflects that Ing “assert[ed] that the payment of the one million dollars was a gift or compensation for his business services and that Lee owe[d] him additional monies for other business services he rendered relating to the surgical center.” The excerpts of Ing’s trial transcript attached to the motion confirm that Ing testified at trial that, of the $1 million that Lee paid into Ing’s investment company (known as Hypo Capital Markets, Inc.), about $540,000.00 was donated to Ing’s church to buy the property in Rowland Heights. (Ing Decl., 10:11-12, Exhibit “A,” 74:5-9). Ing also testified that at least some of the $1 million was used to pay Ing and his wife for work that they performed at the Maximum Surgery Medical Center. (Id., 11:3-5, Exhibit A,” 129:1-28 and 142:18-143:21). Ing’s testimony and position at trial was consistent with the stipulation. Ing asserted that the money belonged to him and was not for the purpose of an investment on behalf of Lee. The stipulation, then, did not prevent Ing from giving trial testimony as to the “new facts.”

Accordingly, the motion is denied.