Zeng v. Jiang CA2/3 ( 2022 )

Filed 9/9/22 Zeng v. Jiang CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ANPING ZENG, B305886
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC583483)
v.
FENG JIANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stuart M. Rice, Judge. Affirmed in part;
reversed in part and remanded with directions.
Anglin Flewelling & Rasmussen, Robert A. Bailey and
Yaw-Jiun (Gene) Wu for Defendant and Appellant.
Law Offices of Barry G. Florence and Barry G. Florence for
Plaintiff and Respondent.
_________________________
Plaintiff and respondent Anping Zeng sued her former
husband, defendant and appellant Feng Jiang, claiming that
their divorce agreement allocated to her an investment they had
made during their marriage. Jiang responded to the lawsuit by
moving to dismiss it based on forum non conveniens, arguing that
he and Zeng were Chinese nationals residing in China. The trial
court denied that motion, and the matter proceeded to a bench
trial, after which the trial court found for Zeng. Jiang contends
on appeal that the trial court erred by denying his forum non
conveniens motion, the trial court erroneously admitted at trial
an exhibit concerning mediation, there was insufficient evidence
he breached the divorce agreement, and awards of prejudgment
interest and attorney fees should be reversed. We agree that the
prejudgment interest award must be reversed and remanded for
further proceedings but reject Jiang’s remaining contentions.
BACKGROUND
I. The complaint
Zeng and Jiang were married in China and divorced there
in 2011. During their marriage, Zeng and Jiang invested
$500,000 in the Los Angeles Film Regional Center (LAFRC) to
secure United States green cards.
After their divorce, Zeng and Jiang disputed who was
entitled to return of the LAFRC investment. So, in May 2015,
Zeng filed a complaint in Los Angeles County Superior Court for
declaratory relief, naming LAFRC and Jiang as defendants. The
complaint alleged that Zeng and Jiang had entered into a divorce
agreement in China providing that the $500,000 and stock rights
in LAFRC belonged to Zeng. Because LAFRC was poised to
disburse the funds to Jiang, Zeng asked for declaratory relief.
2
In response to the complaint, LAFRC interpleaded the
funds, and the trial court entered an order dismissing LAFRC
from the case in November 2016.
Jiang still had not been served with the complaint as of
July 2015. In response to an order to show cause regarding
service, Zeng explained that Jiang resided in China, so it was
necessary to serve him through the Hague Convention process,
and she thought he was evading service.
Nonetheless, Jiang was finally served on August 31, 2016
at an address in San Marino, California. He demurred to the
complaint, but Zeng filed a first amended complaint (FAC),
thereby mooting the demurrer. The FAC realleged the
declaratory relief cause of action and alleged a new cause of
action for breach of contract, i.e., a divorce agreement dated
September 7, 2011. Jiang answered the FAC in December 2016.
Although he raised various affirmative defenses, he did not raise
any issue based on forum non conveniens.
II. Jiang’s motion to dismiss based on forum non conveniens
A month after answering the FAC, Jiang moved in
January 2017 to dismiss the action on the grounds of forum non
conveniens. Jiang argued that he and Zeng resided in and were
citizens of China and that the divorce agreement was entered
into in China and governed by its laws. He admitted having
owned a home in California but denied having a current interest
in it, living there, or residing in California. He also asserted that
Zeng had filed an action in China seeking the same relief, but
that action had been dismissed for failure to pay court fees.
Jiang agreed to be subject to jurisdiction in China and to waive
any statute of limitations. Jiang asserted that the divorce
3
agreement allocating the LAFRC funds to Zeng was a “complete
fabrication.”
Zeng opposed the motion. She first argued that Jiang had
waived any right to raise forum non conveniens because he had
not raised it concurrently with his demurrer. Second, on the
merits, Zeng asserted that she was a California resident and that
Jiang was living at a home he owned in Los Angeles County
when he was served. Further, the purpose of the LAFRC
investment was to enable the parties to immigrate to the United
States.
The trial court denied Jiang’s motion.1 The trial court first
noted that while a defendant who has generally appeared in an
action can thereafter raise forum non conveniens, a defendant’s
dilatory conduct in raising the issue may result in prejudice
sufficient to deny the motion. Given the case’s procedural
posture, the trial court found sufficient prejudice to warrant a
finding that the motion was untimely. The trial court therefore
pointed to the interpleaded funds, which it said could not be
disbursed until a final adjudication on the merits. Because the
funds had been deposited into court and LAFRC had been
dismissed, the trial court found that plaintiff could not seek relief
in another jurisdiction. Were the case to be dismissed, the
parties would potentially lose their interests in the property,
which could escheat to the state.
Notwithstanding its untimeliness finding, the trial court
addressed the motion’s merits. It first found that although China
was generally considered a suitable forum and that Jiang had
agreed to waive any limitations period, China was not a suitable
1Judge Deirdre Hill heard the motion to dismiss. The
hearing was not reported.
4
forum because of the interpleaded funds. Also, the trial court
found it was uncertain whether a Chinese judgment could be
enforced in California. Further, the private and public interests
favored trying the case in California: the disputed funds were in
California, Zeng and her son were California residents, Jiang was
served in California, and he signed verifications under penalty of
perjury in California. Finally, the trial court noted that the
purpose of the investment money was to get visas to enable the
parties and their son to live in California. Weighing these
interests, the trial court concluded that the case should remain in
California.
III. The trial
The matter proceeded to a bench trial where the issue was
which of two divorce agreements purporting to govern the
LAFRC investment was genuine. Zeng claimed that a divorce
agreement dated September 7, 2011 (the Zeng agreement) stating
that the funds belonged to her was genuine. Jiang claimed that
his signature on the Zeng agreement was forged and that a
November 28, 2011 agreement (the Jiang agreement) stating that
the funds belonged to him was genuine.
Only the parties and their competing forensic handwriting
experts testified. Zeng testified that on September 7, 2011, she
and Jiang were in a Shanghai courtroom, where they signed the
Zeng agreement and a mediation agreement/transcript. She
denied signing the Jiang agreement.
Zeng’s expert, M. Patricia Fisher, a board certified forensic
document examiner, had 40 years of experience that included a
seminar in Chinese writing. Fisher testified that she had
reviewed the Zeng agreement and a mediation transcript, both
dated September 7, 2011 and both bearing what Zeng claimed
5
were Jiang’s signature. She also reviewed handwriting
exemplars, i.e., documents bearing Jiang’s signature. In the
expert’s opinion, Jiang signed the Zeng agreement. Fisher
further opined that Zeng did not sign the Jiang agreement.
Jiang’s expert, James Black, testified to the contrary, that
Jiang’s signature on the Zeng agreement was fabricated. In
reaching that opinion, Black reviewed live exemplars of Jiang’s
handwriting, meaning handwriting samples that Jiang prepared
while meeting with Black. Jiang also testified that he did not
sign the Zeng agreement. Rather, he and Zeng signed the Jiang
agreement.
IV. The statement of decision
In a statement of decision, the trial court found that the
Zeng agreement was genuine and so it governed the LAFRC
investment. The trial court explained that it had found Zeng’s
expert, who, for example, had training in Chinese writing, more
persuasive. Further, Zeng’s expert did not rely on live
handwriting exemplars, meaning ones provided with knowledge
that they were going to be used at trial, whereas Jiang’s expert
had relied on Jiang’s live handwriting exemplars in forming his
opinion that his client’s signature on the Zeng agreement was
forged.
The trial court also found Zeng more credible and that the
circumstances under which the Zeng agreement had been signed
did not support an inference Jiang’s signature on it was forged.
Further, the Zeng agreement itself, when compared to the Jiang
agreement, showed that it was genuine because it used formal
language, was more thorough in its division of assets, and did not
disparage either party. In contrast, the Jiang agreement opened
with, “ ‘As a result of the wife’s extramarital affairs, the
6
marriage, through court mediation, has come to an end.’ ” The
trial court found that such “tone and language does not have the
imprimatur of a valid, legal agreement. The document
immediately disparages the plaintiff and refers to a mediation
that [Jiang] does not acknowledge attending or, at the very least,
an alternate mediation date [Jiang] has not provided testimony
to support. It is also unlikely that [Zeng] would sign an
agreement acknowledging extra-marital affairs.”
The trial court concluded that the Zeng agreement was
genuine and enforceable, the interpleaded funds would be
released to Zeng, and Zeng was entitled to prejudgment interest
at a rate of 10 percent per annum under Civil Code section 3289.
The trial court entered judgment to that effect, awarding Zeng
the interpleaded funds, $245,075.11 in prejudgment interest, and
$205,077.75 in attorney fees.
DISCUSSION
I. Forum non conveniens
Jiang contends that the trial court erroneously denied his
motion to dismiss the action based on forum non conveniens. We
disagree.
Forum non conveniens is an equitable doctrine invoking a
court’s discretionary power to decline to exercise jurisdiction over
a cause of action when the action may be more appropriately and
justly tried elsewhere. (Stangvik v. Shiley, Inc. (1991) 54 Cal.3d
744, 751.) The moving-party defendant bears the burden of proof
on a motion to dismiss based on the doctrine. (Ibid.) Whether to
grant a forum non conveniens motion requires a trial court to
engage in a two-step analysis. (Ibid.) First, the trial court
determines whether the alternate forum is a suitable place for
7
trial. A forum is generally suitable “if there is jurisdiction and no
statute of limitations bar to hearing the case on the merits.”
(Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1037.)
That the law is less favorable to the plaintiff in the alternative
forum, or that recovery would be more difficult if not impossible,
is irrelevant to whether the forum is suitable unless “the
alternative forum provides no remedy at all,” such as where there
is no independent judiciary or due process of law. (Stangvik, at
p. 764.)
If the forum is suitable, the second step requires the trial
court to consider the litigants’ private interests and the public’s
interests in retaining the action for trial in California. “The
private interest factors are those that make trial and the
enforceability of the ensuing judgment expeditious and relatively
inexpensive, such as the ease of access to sources of proof, the
cost of obtaining attendance of witnesses, and the availability of
compulsory process for attendance of unwilling witnesses. The
public interest factors include avoidance of overburdening local
courts with congested calendars, protecting the interests of
potential jurors so that they are not called upon to decide cases in
which the local community has little concern, and weighing the
competing interests of California and the alternate jurisdiction in
the litigation.” (Stangvik v. Shiley, Inc., supra, 54 Cal.3d at
p. 751.)
The first determination of whether there is a suitable
alternative forum is a nondiscretionary legal question subject to
de novo review. (American Cemwood Corp. v. American Home
Assurance Co. (2001) 87 Cal.App.4th 431, 436.) The second
inquiry, however, involves discretionary weighing of private and
public factors and is reviewed for abuse of discretion, affording
8
substantial deference to the trial court’s balancing of factors.
(Ibid.)
Beginning with the first inquiry, the trial court found that
while China generally is a suitable alternative forum (see, e.g.,
Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 699),
it was not suitable in this case. China was an unsuitable forum
here because the res of the lawsuit—the $500,000—was already
in the California court’s possession, and the enforceability of a
Chinese judgment in California courts was uncertain. To this,
Jiang responds that the trial court could have stayed rather than
dismissed the case.2 Even so, the fact remains that Jiang failed
to establish that a Chinese court would have jurisdiction over the
interpleaded funds.
Even if the trial court incorrectly concluded that China was
not a suitable forum, it nonetheless engaged in the second-prong
forum-non-conveniens analysis and found that the balance of
factors favored trial in California. That conclusion was well-
within the bounds of reason based on substantial evidence. First,
the subject of the parties’ dispute was an investment in a Los
Angeles company and the investment itself was in Los Angeles
County. Because the trial court already had jurisdiction over the
res of the lawsuit and had already committed time and resources
to the litigation, this made trial and the enforceability of the
ensuing judgment potentially more expeditious and relatively
inexpensive in California.
Second, plaintiff Zeng and her son were California
residents. As such, her choice of forum should not be disturbed
2According to the minute order of the unreported hearing
on the motion to dismiss, Jiang asked for a stay at the hearing,
although he had asked only for dismissal in his motion.
9
unless the balance of factors strongly favors the defendant. (See
generally National Football League v. Fireman’s Fund Ins. Co.
(2013) 216 Cal.App.4th 902, 917.) There is evidence that Jiang
also resided in California, although he denied it. (See, e.g., ibid.[defendant’s residence is relevant factor].) Jiang had been served
with the complaint at a property in San Marino, California to
which he had held title, and Jiang signed verifications under
penalty of perjury while at that property in December 2016. The
trial court properly exercised its discretion to find that this
constituted evidence Jiang resided in California, which also
weighed in favor of a California forum.3
Third, the trial court noted that the parties invested
$500,000 in LAFRC to get United States green cards to live here.
The investment thus evidenced the parties’ intent to reside in
California. More to the point, having availed himself of an
immigration program allowing him to be a member of the local
community, Jiang’s protest that the local community has no
3 Jiang argues that Zeng is judicially estopped from
asserting that he resided in California because of statements
Zeng’s counsel made in a July 2016 declaration about why Jiang
had not been timely served with the complaint. Judicial estoppel
prohibits a party from asserting a position contrary to one
successfully asserted in the same or an earlier proceeding.
(Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171,
183.) Counsel declared that he had been trying to serve Jiang for
a year, but Jiang was moving around to avoid service. He said
that Jiang resided in China but also lived in Connecticut, and
that counsel had just obtained a new address for Jiang. In so
declaring, counsel did not take an inconsistent position but
rather was asserting facts he believed to be true. Also, it is
possible that Jiang had resided in China and also in California.
10
interest in a dispute concerning residents and a local investment
is unpersuasive.
Jiang nonetheless counters that the trial court improperly
elevated one factor (the $500,000 interpleaded into court) and
ignored others (that any divorce agreement was entered into in
China). While the public and private factors must be applied
flexibly without giving undue emphasis to one factor (Stangvik v.
Shiley, Inc., supra, 54 Cal.3d at p. 753), any emphasis the trial
court placed on the interpleaded funds was not undue. That
factor was relevant to both prongs of the analysis, and the trial
court did not consider it to the exclusion of the others. Rather, as
we have detailed, the trial court considered and balanced all
relevant factors, including the parties’ residency.
But Jiang nonetheless maintains that China had a greater
interest in adjudicating this dispute because the contract was
entered into there and governed by its laws. He cites In re
Marriage of Taschen (2005) 134 Cal.App.4th 681 (Taschen). In
that case, Angelika petitioned in Los Angeles County to dissolve
her marriage to Benedikt, both German citizens. Benedikt also
was the president of a German company where Angelika was
employed, they owned homes in Los Angeles, and they lived part-
time in Germany and part-time in Los Angeles. Based on
evidence that necessary witnesses and documents were in
Germany, some documents were in German, and the parties were
German nationals and domiciliaries, Taschen found that the trial
court did not exceed the bounds of reason in concluding Germany
was the more appropriate forum. (Id. at p. 691.)
Taschen is distinguishable. That the trial court’s finding in
that case was not an abuse of discretion does not mean it was
legally compelled. Also, unlike the parties in Taschen, Zeng was
11
a California resident and there was evidence Jiang also resided
in California. Taschen also did not involve property located in
California, as is the case here. And although Jiang argues that
China has an interest in enforcing contracts entered into there
and under its laws, we do not agree with how Jiang frames the
issue. The issue in this case does not concern broader issues
about the parties and their divorce agreement and how they
divided their assets. It concerns the narrow issue of the parties’
singular investment in the United States for the purpose of
obtaining green cards, i.e., residence in the United States. It is
therefore not clear that China would have an interest in a
dispute concerning a foreign investment made by nationals
residing outside of China. At a minimum, it cannot be said that
China’s interest in the dispute necessarily is greater than
California’s interest in it. Given this, we cannot find that the
trial court exceeded the bounds of reason in concluding that the
factors favored California as a forum.
Jiang finally suggests that the trial court erred by finding
his motion untimely because he filed it after demurring to the
original complaint and answering the FAC. Any error on this
score is irrelevant because the trial court considered the motion
on its merits. In any event, the trial court did not err. Jiang
incorrectly argues that the trial court ignored authority holding
that a defendant who has “generally appeared may make a forum
non conveniens motion at any time, not only on or before the last
day to plead.” (Britton v. Dallas Airmotive, Inc. (2007) 153
Cal.App.4th 127, 133; Global Financial Distributors Inc. v.
Superior Court (2019) 35 Cal.App.5th 179, 188.) To the contrary,
the trial court acknowledged that authority but also noted that in
some cases a defendant’s dilatory conduct in raising forum non
12
conveniens may be so prejudicial that it warrants denying the
motion.
It found that such was the case here. Here, Jiang did not
raise forum non conveniens in his demurrer to the original
complaint or answer to the FAC. Instead, he has admitted on
appeal that he strategically waited to file his motion to dismiss
until after LAFRC had been dismissed from the case in November
2016 because its status as a California resident would have
created a presumption that California was a convenient forum.
This admission undercuts his suggestion that he did not know of
or could not have addressed the interpleader action sooner.
As to that, while Jiang was not served with the complaint
until August 2016—which was more than a year after the
complaint was filed, several months after LAFRC’s interpleader
motion had been granted but several months before LAFRC was
dismissed in November 2016—there is evidence that Jiang was
aware of the lawsuit and the interpleader motion. Zeng said she
had been trying to serve him and thought he was evading service,
and her counsel had emailed Jiang about accepting service, but
he refused. Also, Jiang was served by email in January 2016
with Zeng’s limited opposition to LAFRC’s motion for an order of
discharge and dismissal, an amended notice of ruling on the
motion for interpleader in February 2016, and a stipulation to
modify the order of discharge in April 2016. Therefore, Jiang
knew well before being served with the complaint about the
litigation. While Jiang perhaps could not have challenged the
interpleader motion until he was served with the complaint,
there was evidence to support the trial court’s finding that Jiang
was dilatory in raising forum non conveniens.
13
II. Admissibility of the mediation transcript
At the bench trial, the trial court admitted exhibit 10, an
“indictment of divorce and mediation transcript” signed in
Shanghai, China on September 7, 2011. Jiang now argues that
the trial court’s reliance on the “substance” of the mediation
transcript requires reversal, because that document was
inadmissible. We disagree.
Our disagreement first lies with Jiang’s assertion that the
trial court considered the “substance” of the mediation transcript.
Substantively, the mediation transcript restates basic facts about
the parties (e.g., date of birth and addresses), Zeng’s explanation
as to why she wanted a divorce, who was present at the
mediation (the parties, a judge, a clerk, and mediators), and
contains a brief colloquy between the parties and a mediator
about alimony, child custody, and that the parties had resolved
community property, housing, and credit and debt issues. None
of this was pertinent to the trial court’s decision.
Instead, the mediation transcript was relevant because it
bears what purports to be Zeng’s and Jiang’s signatures on
September 7, 2011, the same day the Zeng agreement was signed.
As the trial court therefore said, the mediation transcript was
relevant because it contained an exemplar of the parties’
signatures and, as such, was reviewed by Zeng’s expert to
evaluate the genuineness of the signatures on the Zeng and Jiang
agreements.
In its statement of decision, the trial court confirmed it had
considered only the circumstances surrounding the mediation
transcript but not its substance. The trial court said that the
“abundance of detail about the circumstances upon which the
Zeng Agreement was signed, and the mediation transcript
14
placing both parties in the same official location on the day it was
signed,” supported its conclusion that Zeng was more credible.
The trial court therefore did not rely on the substance of the
mediation transcript—e.g., why Zeng wanted a divorce and that
the parties had agreed to resolve property and custody issues.
Our second problem with Jiang’s focus on the mediation
transcript is he ignores all the other evidence the trial court
relied on to support its judgment, in violation of the principle that
no judgment shall be set aside unless the error complained of
resulted in a miscarriage of justice. (Cal. Const. art. VI, § 13;
Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; Zhou v.
Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480.)
Whether a miscarriage of justice occurred requires an
examination of the entire cause. (Cassim, at p. 800.) Jiang
undertakes no such examination. Although his failure to do so
constitutes a forfeiture of the issue, our examination shows that
the trial court’s judgment did not hinge on the mediation
transcript. The trial court was quite clear that it did not find
Jiang and his expert credible. It gave less deference to Jiang’s
forensic expert because his resume did not reflect relevant
experience, qualifications, and training with Chinese characters,
in contrast to Zeng’s forensic expert who had qualifications and
familiarity with Chinese characters. Jiang’s expert’s
methodology was also suspect because he relied on live exemplars
of Jiang’s handwriting that Jiang prepared for the litigation,
again in contrast to Zeng’s expert who did not rely on live
exemplars. The trial court also said that Zeng and Jiang’s
credibility was “key” to its decision and cited several instances in
which it found Zeng’s explanation for certain events credible.
Finally, the trial court indicated that the Jiang agreement was
15
not credible on its face, finding it “unlikely” that Zeng would have
signed an agreement that disparaged her by referring to her
extramarital affairs as the cause of the divorce.
Given our rejection of Jiang’s premise that the trial court
relied on the “substance” of the mediation transcript and our
conclusion that, in any event, no miscarriage of justice occurred,
Jiang’s arguments about why the mediation transcript was
inadmissible are of no moment. Even so, we address them in
brief.
Jiang first argues that the mediation transcript should
have been excluded because it was not disclosed on Zeng’s exhibit
list before trial. However, although the pretrial colloquy about
the exhibits is somewhat ambiguous, Jiang’s counsel did not ask
that the mediation transcript be excluded; he asked for a
continuance. In response, Zeng’s counsel explained that the
document was a handwriting exemplar her expert, Fisher, had
relied on, and therefore it was on the pretrial exhibit list under
the label of “exemplars” of Fisher. Counsel further explained
that because there had been no exchange of experts, it would not
have been disclosed during any expert disclosure process. (See
generally Code Civ. Proc., § 2034.210 [detailing simultaneous
exchange of expert witness information].) Given these
representations, the trial court was well within its discretion to
find the exhibit admissible and to deny a continuance, especially
given that the matter was on the eve of trial.4 (See generally
4 We also note that Jiang had multiple opportunities to
object to the mediation transcript, including at the close of trial
when the trial court told the parties to provide a tabbed and
indexed exhibit binder with a stipulation as to what was
admissible. The trial court said that if they disagreed on any
16
Professional Engineers in California Government v. Brown (2014)
229 Cal.App.4th 861, 875 [trial court has broad discretion in
ruling on admissibility of evidence]; Denham v. Superior Court
(1970) 2 Cal.3d 557, 566 [trial court’s exercise of discretion in
ruling on continuance request will not be disturbed on appeal
unless there has been a miscarriage of justice]; Cal. Rules of
Court, rule 3.1332(c) & (d) [trial continuances are disfavored, and
proximity to trial is a factor to consider].)
Second, Jiang argues that the mediation transcript was
inadmissible hearsay. However, as we have indicated, the trial
court did not consider the document for a hearsay purpose.
Instead, Zeng called Jiang as a witness in her case in chief and
asked if his signature appeared on the mediation transcript. The
trial court overruled Jiang’s objections that the document lacked
foundation, violated the California Rules of Court, and had not
been translated into English. The trial court repeated that the
transcript was not coming in for its substance. Jiang then denied
that the signature on the document was his. Thereafter, the trial
court did not use the mediation transcript for “substantive
purposes.” Instead, the trial court inquired as to the
circumstances surrounding the signing of the mediation
transcript; for example, why the mediation transcript was signed
by witnesses while the Zeng agreement was signed by only Zeng
and Jiang.
As for Jiang’s third contention, that the document was
inadmissible under the mediation privilege in Evidence Code
section 1119, subdivision (a), he admittedly never raised the
privilege below. His failure to do so forfeits the claim on appeal.
exhibit, the parties were to bring it to the trial court’s attention
so that it could rule on any objection. Jiang did not do so.
17
(See generally K.C. Multimedia, Inc. v. Bank of America
Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 949–
950; People v. Hayes (1990) 52 Cal.3d 577, 618–619.)
III. Enforceability of the Zeng agreement
As we understand it, Jiang’s next contention is the trial
court should have declined to hear the action because the Zeng
agreement was part of a divorce decree, and, as such, the “family
court” had “exclusive jurisdiction” over any matter relating to
that decree. Stated otherwise, the matter had to be heard in
China.
To the extent this is a rehash of the forum non conveniens
argument, we have already rejected it.
To the extent Jiang is arguing that only China could hear
or enforce this matter, he did not make any such cogent
argument or motion on that ground below, other than the motion
based on forum non conveniens. And on appeal, he merely cites
authority that when a family court acquires jurisdiction to divide
community property in a dissolution action, no other department
of the superior court may make an order adversely affecting that
division. (See, e.g., McMillin v. Eare (2021) 70 Cal.App.5th 893,
919.) That authority has no application here, as it does not
concern a foreign judgment.
As for Jiang’s arguments that the Zeng agreement was
unenforceable because it was inequitable, he was not represented
by counsel when he signed it, and a condition precedent to
enforcement had not occurred, these issues were not raised
below, and we accordingly decline to address them. (K.C.
Multimedia, Inc. v. Bank of America Technology & Operations,
Inc., supra, 171 Cal.App.4th at p. 949.)
18
Further, assuming Chinese law, and not California law,
governed any issue, it was Jiang’s appellate burden to
demonstrate how Chinese law would require reversal of the
judgment, which we presume is correct regardless of its
reasoning. (See generally Sommer v. Gabor (1995) 40
Cal.App.4th 1455, 1470 [no prejudicial error absent showing
foreign law required different result].) Jiang made no attempt to
do so.
IV. Sufficiency of the evidence to show breach of contract
Jiang concedes there was sufficient evidence of the
existence of a contract (the Zeng agreement) but disputes that
there was sufficient evidence he breached it. He thus points out
that although the FAC alleged he had breached the Zeng
agreement by not agreeing to a transfer of the LAFRC
investment when it matured, no evidence was admitted to
establish his refusal. We are unpersuaded.
It is true that Jiang at trial was never asked, “Do you
refuse to have the LAFRC investment released to Zeng?” And it
might have behooved Zeng to have the court take judicial notice
of LAFRC’s motion to interplead the $500,000 and to introduce
conflicting demand letters from Zeng and Jiang to LAFRC, each
claiming a right to the monies. These omissions do not, however,
amount to the “gotcha” moments Jiang thinks they do.
Rather, the declaration of LAFRC’s counsel was admitted
into evidence, and in that declaration he said that Jiang had sent
demand letters to LAFRC in September and October 2015 for
return of the funds to him. Even in the absence of the
declaration, that Jiang was refusing to honor the Zeng agreement
was beyond doubt. This dispute was about which of two
competing agreements was genuine: the Zeng agreement stating
19
the investment belonged to her, or the Jiang agreement stating
the investment belonged to him. Jiang’s denial that he signed
the Zeng agreement, his expert’s testimony that it was not
Jiang’s signature on the Zeng agreement, and Jiang’s position
that the investment belonged to him under the Jiang agreement
are, to say the least, evidence of his refusal to acknowledge that
the funds belonged to Zeng, i.e., a breach of the Zeng agreement.
Stated simply, that Jiang was refusing to comply with the Zeng
agreement was overwhelmingly clear.
V. Prejudgment interest
Jiang contends that the award of prejudgment interest
must be reversed. As we now explain, we agree.
After the parties rested, they submitted closing briefs. In
hers, Zeng asked for prejudgment interest in the amount of
$237,814.64 ($136.99 per day beginning on the day the complaint
was filed). The trial court then issued a proposed statement of
decision on March 16, 2020, which the clerk mailed that day. The
proposed statement of decision awarded prejudgment interest of
$237,814.64, calculated based on the 10 percent per annum
interest rate in Civil Code section 3289.
Jiang filed objections to the proposed statement of decision
on April 6, 2020, and one objection was to prejudgment interest.
He pointed out that the Zeng agreement contained this interest
provision: “In case of the failure to pay the compensation amount
in time, in addition to paying the interest four times of the
interest of the bank, the defaulting Party shall also assume the
legal cost, attorney fee and the travel expense of the lawsuit
therefrom.” Jiang further argued that Zeng had failed to produce
evidence of the meaning of this provision, when the investment
matured, and the date of breach.
20
On April 20, 2020, the trial court adopted its proposed
statement of decision, and in its judgment stated that the “time
to file objections pursuant to California Rules of Court, Rule
3.1590 having expired, the court adopts its tentative decision.”
By this, it is unclear whether the trial court considered the
objections or found them untimely. If the latter, the trial court
was incorrect. A party has 15 days from the time a proposed
written statement of decision is served to file objections. (Cal.
Rules of Court, rule 3.1590(g).) Service by mail extends by five
days the time to file a response. (Code Civ. Proc., § 1013, subd.
(a); Staten v. Heale (1997) 57 Cal.App.4th 1084, 1088–1089.) The
proposed statement of decision was served by mail on March 16,
2020, so any objections had to be filed within 20 days, with the
twentieth day being April 5, 2020, a Sunday. Therefore, Jiang
had to file objections on or by April 6, 2020, which is what he did.
His objections were therefore timely.
Jiang’s timely objection that the interest rate in Civil Code
section 3289 did not apply might be well-taken. That section
states that if a contract entered into after 1986 does not stipulate
a legal rate of interest, the obligation shall bear a 10 percent per
annum interest rate after a breach. (Civ. Code, § 3289, subd. (b).)
Thus, where parties enter into a contract containing a legal rate
of interest, they are bound by that contract, as prejudgment
interest at the statutory rate is available only in the absence of a
contractual provision. (Cavalry SPV I, LLC v. Watkins (2019) 36
Cal.App.5th 1070, 1093.) Here, the Zeng agreement did stipulate
an interest rate of “four times of the interest of the bank.” But
the trial court found that the “contract contains no interest rate
specified in the event of a breach.”
21
Because it appears that the trial court might not have
considered the interest rate in the Zeng agreement and Jiang’s
objections to prejudgment interest, the prejudgment interest
award must be reversed and the matter remanded so that the
trial court can consider the objections to prejudgment interest
and conduct further proceedings on this limited issue in its
discretion. We express no opinion on the meaning of the interest
provision, its applicability, and its enforceability.
VI. Attorney fees
Jiang’s only complaint about the award of attorney fees to
Zeng is the trial court inappropriately let Zeng submit a
supplemental brief, which, in Jiang’s view, constituted a new and
untimely motion for attorney fees. We disagree.
A motion for attorney fees must be filed within the time for
filing a notice of appeal, which is usually 60 days after service of
notice of entry. (Cal. Rules of Court, rules 3.1702(b), 8.104.) A
trial court may extend the time to file a motion for attorney fees
for good cause. (Id., rule 3.1702(d).) California Rules of Court,
rule 3.1702(d), is to be liberally construed. (Robinson v. U-Haul
Co. of California (2016) 4 Cal.App.5th 304, 326.)
Here, Zeng timely filed her motion for attorney fees,
supported by her counsel’s declaration. Counsel discussed the
work involved in the case but did not state the number of hours
he worked on it or a billing rate. Instead, he said he had
represented Zeng on a contingency basis at a rate of 40 percent of
the judgment. Jiang opposed the motion on the ground that
Zeng’s counsel had failed to meet the burden of proof, because
counsel did not state his rate and hours worked, which were
necessary to calculate the lodestar. The trial court heard the
motion and found that although counsel’s declaration provided
22
some relevant information about the fees incurred, it was
inadequate because it did not state counsel’s hourly rate and the
hours worked on the case. Therefore, the trial court ordered Zeng
to submit supplemental briefing, allowed Jiang to respond, and
continued the hearing. Zeng filed her supplemental brief setting
forth her counsel’s billing rate, the hours he worked on the case,
and supporting exhibits. Jiang filed his supplemental opposition,
arguing that Zeng’s supplemental brief amounted to a brand new
motion for attorney fees and, as such, was untimely.
In its ruling granting Zeng her attorney fees, the trial court
distinguished authority Jiang had cited for the proposition that
the supplemental brief constituted a new fee motion and found it
had the discretion to order that briefing.
We agree with the trial court that it did not violate the time
restrictions in California Rules of Court, rule 3.1702(b), by
ordering the supplemental briefing. First, the trial court had
authority to extend the time to file a fee motion, and it clearly
found good cause for that briefing and to continue the hearing.
(See Cal. Rules of Court, rule 3.1702(d).)
Second, the authority Jiang relied on, Alan S. v. Superior
Court (2009) 172 Cal.App.4th 238, is, as the trial court found,
distinguishable. In that case, the prevailing party filed a cost
memorandum. The losing party, Mary, filed limited objections.
Thereafter, Mary, without leave of court, filed supplemental
objections that stated “wholly distinct and independent” grounds.
(Id. at p. 261.) The court found that the supplemental objections
were untimely and that considering them would subvert the time
the California Rules of Court permitted to file a motion to strike
or tax costs. (Ibid.)
23
Alan S. is not on point. It involved costs, not attorney fees.
Also, Mary had no leave of court to file supplemental objections,
whereas the trial court here ordered Zeng to file the
supplemental brief. And while that supplemental briefing
contained additional information, namely, counsel’s hourly rate
and hours worked on the case, it was not a wholly new motion.
Rather, Zeng had already established in her original papers that
she was the prevailing party (a matter not subject to much
dispute), that her attorney represented her on a contingency
basis, and the amount of attorney fees sought, $298,030. In her
supplemental brief, Zeng asked for attorney fees in the reduced
amount of $241,680, and detailed the work, hours, and counsel’s
hourly rates. We therefore disagree that the supplemental
briefing was a wholly new motion and that Jiang was prejudiced
by the supplemental briefing.
24
DISPOSITION
The award of prejudgment interest is reversed, and the
matter is remanded for further proceedings for the trial court to
reconsider that interest award. The judgment is otherwise
affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
25