Lam v. Fan CA2/4 ( 2023 )

Filed 12/18/23 Lam v. Fan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TAK WAH LUKA LAM et al., B312589
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC716001
v.
HENRY FAN, as Special
Administrator, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Judge. Affirmed.
Lew Law Firm and Bill W. Lew for Plaintiffs and
Appellants.
Emmanuel Nwabuzor and Travis M. Poteat for Defendant
and Respondent.
INTRODUCTION
This case concerns a transaction involving Chinese real
estate. Following a bench trial, the trial court ruled plaintiffs,
Tak Wah Luka Lam and Mei Lin Tsang (collectively, the Buyers),
failed to prove defendants, Chau Han Fan and Siu Ying Fan
(collectively, the Sellers), were liable for promissory fraud.1 Based
on this finding, the court further concluded the Buyers were not
entitled to relief on their remaining claims for money had and
received and restitution. Accordingly, it entered judgment in
favor of the Sellers.
On appeal, the Buyers contend the trial court committed
reversible error by: (1) excluding the testimony of Justin
Shrenger, their proffered expert on Chinese real estate law; and
(2) denying the Buyers’ request to read into the record excerpts of
the deposition testimony of the Sellers’ proffered expert on
Chinese real estate law, Natalie Zhang, whom the Buyers
successfully moved to exclude from testifying at trial. As
discussed below, we reject the Buyers’ arguments and affirm.
1 Because several individuals involved in this case share the
same surname, we refer to them by their first names to avoid
confusion. No disrespect is intended. Siu Ying died before the
lawsuit was initiated. Chau Han died after her deposition was
taken but before trial began. Consequently, at trial and on
appeal, Chau Han has been represented by Henry Fan, her son
and the special administrator of her estate, as well as Siu Ying’s
estate.
2
BACKGROUND
I. Relevant Factual Background2
The transaction at issue related to a four-story building
located in Guangzhou, China, known as the Beijing Road
Property. At the time of the transaction, the Sellers owned the
property and possessed the real estate certificate reflecting their
ownership. They were octogenarians living in Monterey Park,
California.
Lam, a Hong Kong resident, has been in the real estate
investment business for the last 30 years and has been involved
in over 50 transactions relating to real estate in China. He
solicits elderly individuals residing in the United States to “sell”
him properties they own in China. For these transactions, Lam
has utilized a power of attorney with terms that, under Chinese
law, permit him to resell the property to third parties without
ever having to take title in his own name or pay taxes on the
resale transaction.
According to Chau Han, between March and May 2015,
Lam called the Sellers and offered to send them $2 million in
exchange for a power of attorney and the property certificate for
the Beijing Road Property. In July 2015, Lam wired $300,000 to
the Sellers. Then, on August 7, 2015, Lam e-mailed a power of
2 We limit our discussion of the facts to those necessary to
provide context for understanding and resolving the issues
presented on appeal. The following facts are taken from the trial
court’s statement of decision, as well as the portions of the
Reporter’s Transcript cited in the parties’ briefs. The parties do
not challenge or otherwise dispute these facts on appeal. The
Sellers’ motion to augment the Clerk’s Transcript, filed
September 1, 2022, is hereby denied.
3
attorney to the Sellers, which was prepared by his attorneys. Per
Lam’s direction, the Sellers signed the power of attorney before a
notary public on August 11, 2015, and brought it to the Chinese
Consul’s Office in Los Angeles for certification. Lam wired the
Sellers an additional $1.7 million on August 20, 2015. Four days
later, he met the Sellers at their home in Monterey Park and
picked up the executed power of attorney along with the property
certificate.
The power of attorney granted 14 separate powers to Tsang
and two of Lam’s lawyers as attorneys-in-fact. The seventh power
is the power to sell the Beijing Road Property and keep the
proceeds of the sale. With respect to this power, the power of
attorney authorizes the attorneys-in-fact “[t]o sell the [Beijing
Road Property], enter into [a] sales contract on the [Beijing Road
Property], handle formalities at the real estate transaction office
for the transfer of property possession (including record-search
and checking and survey), [and] to collect the proceeds from the
sale of the property,” and if “the transaction is not successful, the
attorneys-in-fact are authorized to handle the formalities for the
termination of the transaction.” (Italics omitted.)
After obtaining the power of attorney and property
certificate from the Sellers, Lam encountered several difficulties
relating to the property. In the fall of 2015, Lam discovered Siu
Ying’s sister, Pui Wah Fan, had been residing in the Beijing Road
Property and had prevented his agents from entering the
premises to prepare a site survey, a necessary document for
effectuating title transfers in China. In 2005, the Sellers had
granted a limited power of attorney to Pui Wah.3 Then, in June
3 In its written statement of decision, the trial court credited
Chau Han’s testimony that, while discussing the possibility of
4
2016, Lam learned that, without requisite authority, Pui Wah
purportedly sold the Beijing Road Property to a third-party
developer three weeks after he had received the documents
relating to the property from the Sellers. Due to these incidents,
the property has been the subject of ongoing litigation in China.
II. Procedural Background
The Buyers’ operative second amended complaint asserted
10 causes of action against the Sellers. At trial, only three causes
of action remained: (1) promissory fraud; (2) money had and
received; and (3) restitution.
Before trial, the Buyers filed a motion in limine seeking to
exclude the testimony of Natalie Zhang, one of the Sellers’
proffered experts on Chinese real estate law. Later, the Sellers
filed an ex parte application4 seeking to exclude the testimony of
purchasing the power of attorney and property certificate with
her, Lam was made aware of the limited power of attorney
previously granted to Pui Wah but was not concerned by it.
Specifically, Chau Han testified she expressly told Lam that Pui
Wah was previously given a power of attorney. In response, Lam
told her “[it] doesn’t matter that [Pui Wah] had the power of
attorney,” and assured her that he and his team “would take care
of [the matter].”
4 The Sellers represented they sought ex parte relief because
“the totality of Justin Shrenger’s qualifications and opinions were
not known until his expert deposition was taken on November 3,
2020.” Consequently, by the time the transcript of Shrenger’s
deposition had been prepared and reviewed by the Sellers and/or
their counsel, they had insufficient time to file a motion in limine
to be heard before the final status conference set for November
20, 2020. Nor did they have sufficient time to file any other
5
Justin Shrenger, the Buyers’ sole proffered expert on Chinese
real estate law, based on —among other grounds—his lack of
qualifications. At the final pretrial status conference, the trial
court granted the Buyers’ motion to exclude Zhang in part and
denied the Sellers’ application to exclude Shrenger.
During the eight-day bench trial, the trial court heard
testimony from several lay witnesses, including Lam and Chau
Han. It also heard testimony from the parties’ experts on Chinese
real estate practice and law. The Sellers presented the testimony
of Junwei Gong, while the Buyers called Shrenger to testify.5
Shrenger and Gong provided conflicting opinions on whether,
under Chinese law, the purchase of a power of attorney along
with the original property certificate is a common and/or valid
practice used by real estate investors to facilitate and profit from
transfers of real property in China.
noticed motion to be heard before the commencement of trial on
December 7, 2020.
5 Gong’s deposition testimony was received as his trial
testimony under Code of Civil Procedure section 2025.620,
subdivision (d), which permits any party to “use a video recording
of the deposition testimony of . . . any expert witness even though
the deponent is available to testify” under certain conditions, the
satisfaction of which are not in dispute here. In addition,
although not entirely clear, the record indicates Chau Han’s
deposition testimony was received as her trial testimony
pursuant Code of Civil Procedure section 2025.620, subdivision
(c)(2)(C), which permits any party to “use for any purpose the
deposition of any person” if the court finds the deponent is dead.
Per the parties’ stipulation, the trial court read the transcripts of
these witnesses’ depositions over a weekend during the trial in
lieu of having their depositions read into the record.
6
After receiving evidence and argument, the trial court
issued an oral ruling in favor of the Sellers. Ultimately, the court
concluded: (1) based on Gong’s testimony, under Chinese law, the
real estate transaction at issue was completed when the Sellers
delivered to Lam “a signed and legalized power of attorney
and . . . a real estate certificate for the property involved in the
transaction”; (2) the Buyers failed to prove by a preponderance of
the evidence that the real estate transaction had yet to be
completed at the time Lam received those documents from the
Sellers; and (3) the Buyers failed to prove any false promise by
the Sellers as required to prevail on a claim for promissory fraud.
On January 25, 2021, per the Buyers’ request, the trial
court issued a written statement of decision explaining, over the
course of 11 pages, its findings and conclusions in the Sellers’
favor. That same day, the court entered judgment for the Sellers
on all causes of action asserted against them. The Buyers timely
appealed.
DISCUSSION
As noted above, the Buyers contend the judgment must be
reversed because the trial court erred by excluding: (1) the
testimony of Shrenger; and (2) excerpts of Zhang’s deposition
transcript. We review these evidentiary rulings for abuse of
discretion. (Avivi v.Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467 [“A court’s decision to exclude expert
testimony is reviewed for abuse of discretion”]; Austin B. v.
Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885
[“We review a trial court’s decision to admit or exclude evidence
under the abuse of discretion standard”].)
7
I. Appellants have not shown reversal is required
based on the trial court’s rulings relating to
Shrenger’s testimony.
A. General Legal Principles
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).)
“The party offering the expert must demonstrate the
expert’s knowledge of the subject is sufficient; a determination
left to the sound discretion of the trial judge. [Citation.] The
determinative issue in each case must be whether the witness
has sufficient skill or expertise in the field so his testimony would
be likely to assist the [finder of fact] in the search for the truth.”
(Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d
1432, 1442 (Jeffer).) If the witness passes this “threshold test of
general testimonial qualifications,” then “the question of the
degree of the witness’s knowledge goes to the weight of the
testimony rather than to its admissibility.” (Id. at p. 1443.) In
other words, “‘[w]hen a preliminary showing is made that the
proposed witness has sufficient knowledge to qualify as an expert
under the Evidence Code, questions about the depth or scope of
his or her knowledge or experience go to the weight, not the
admissibility, of the witness’s testimony.’” (People v. Jackson
(2016) 1 Cal.5th 269, 327-328 (Jackson).)
B. Analysis
The Buyers contend the trial court erroneously excluded
Shrenger’s testimony based on his lack of qualifications to testify
as an expert on Chinese real estate practice and law. We reject
this argument because, as discussed below, the record does not
8
show the trial court excluded Shrenger’s testimony based on his
failure to satisfy “the threshold test of general testimonial
qualifications” (Jeffer, supra, 234 Cal.App.3d at p. 1443), as the
Buyers contend. Instead, the court determined Shrenger “‘ha[d]
sufficient knowledge to qualify as an expert under the Evidence
Code,’” and received his testimony at trial, but accorded it no
weight based on “questions about the depth [and] scope of his . . .
knowledge [and] experience . . . .’” (Jackson, supra, 1 Cal.5th at p.
328.)
Throughout the underlying proceedings, the trial court
rejected the Sellers’ efforts to preclude Shrenger from testifying
as an expert at trial. As noted above, before trial, it denied the
Sellers’ ex parte application to exclude Shrenger’s testimony due
to his lack of qualifications. At trial, the court heard extensive
testimony from Shrenger on direct examination. Then, during
cross-examination, the trial court denied the Sellers’ oral motion
to disqualify Shrenger as an expert and heard additional
testimony from him. Finally, after hearing further testimony on
redirect examination, the trial court questioned Shrenger
directly, asking him questions on several topics, including his
education in China.
When issuing its oral decision, the trial court made the
following remarks regarding the parties’ presentation of
conflicting expert testimony on real estate transactions and the
applicable law in China: “The parties entered into a transaction
involving the real estate law of China. Neither party has acted
dishonestly. Both parties are innocent of any deliberate
wrongdoing. The transaction consisted of the documents that the
[Sellers] . . . provided to . . . Lam on August 24, 2015, with respect
to real property in Guangzhou, China.
9
“The legal significance of the documents, under the laws
and procedures of China, must be based upon the opinion of
experts in Chinese law and practices involving real estate
transactions. Each side provided an expert. Plaintiff[s] provided
Justin Shrenger, and defendant[s] provided Junwei Gong.
“Mr. Shrenger has the minimum qualifications to provide
opinions about Chinese law. However, he has not actually advised
clients about Chinese law. He’s not a licensed attorney in China,
and he’s never formally studied Chinese law. I decline to follow
Mr. Shrenger’s opinions either expressed at trial or in his
declaration filed earlier.
“Mr. Gong has the credentials that the court would expect
and respect as to the application of Chinese laws and practices to
a real property transaction occurring in Guangzhou, China. He’s
been a licensed attorney [in China] for 12 years. Of course, he’s
native born Chinese from that locality. He’s handled numerous
real property transactions. He’s been an advisor to the municipal
government, and he’s also taught in . . . two universities of
Chinese law.
“I don’t think I need anything more. The court relies
upon the expert opinion of Mr. Gong, that under China law
the transaction was completed when the [Sellers] delivered
to . . . Lam a signed and legalized power of attorney and delivered
to him a real estate certificate for the property involved in the
transaction. I think this is an expert opinion case based upon the
documents and laws and practices of that area of China.” (Italics
added.)
The trial court again addressed the conflicting expert
testimony presented at trial in its statement of decision.
With respect to Gong, the court stated: “The [Sellers] at trial
10
offered . . . the expert opinion of Junwei Gong. Mr. Gong, a
Chinese citizen, is a lawyer licensed to practice in China and, in
his profession, specializes in advising clients about real property
transactions in Guangdong Province, China.” It later stated: “Mr.
Gong’s expert opinions in applying Chinese law and practice to
the Beijing Road Property transaction are accepted by the Court.”
(Fn. omitted.)
With respect to Shrenger, the trial court noted: “Mr. Justin
Shre[n]ger, plaintiffs’ expert, is not qualified to provide expert
opinion on real estate law or practice in Guangzhou, China. An
American, he is not licensed to practice law in China; has not
handled real estate transactions under Chinese law; and has
never been qualified by a Chinese Court to testify about Chinese
law. (He has testified in Chinese courts about American law.) The
parties stipulated that Shre[n]ger’s declaration should be
received into evidence [citation], and he also testified in person,
but the Court does not find Mr. Shre[n]ger qualified to offer
expert opinion on Chinese law. The Court puts no reliance on his
opinions regarding Chinese law regarding the documentation of
real estate transactions occurring in China.” (Italics added.) In
making these remarks, the trial court did not strike Shrenger’s
testimony.
Taken together, the portions of the record discussed above
show the trial court did not—as the Buyers contend—exclude
Shrenger’s testimony based on his lack of qualifications.6 Instead,
6 For this reason, the cases on which the Buyers rely are
distinguishable from this case. (See Avivi v. Centro Medico
Urgente Medical Center, supra, 159 Cal.App.4th at pp. 465-466
[reversing entry of summary judgment in medical malpractice
case based on the trial court’s erroneous exclusion of the
11
the court expressly found Shrenger satisfied “the threshold test of
general testimonial qualifications” and “permitted [him] to
testify.” (Jeffer, supra, 234 Cal.App.3d at p. 1443.) Subsequently,
after receiving his testimony, the trial court appropriately
considered his qualifications and experience to evaluate “the
degree of [his] knowledge” and determine “the weight [to give] to
[his] testimony.” (Ibid.) Ultimately, the court gave no weight to
Shrenger’s testimony based on its concerns regarding “the depth
[and] scope of his . . . knowledge [and] experience” with Chinese
real estate practice and law. (Jackson, supra, 1 Cal.5th at p. 328.)
“Venerable precedent holds that, in a bench trial, the trial court
is the ‘sole judge’ of witness credibility.” (Schmidt v. Superior
Court (2020) 44 Cal.App.5th 570, 582) And, “[i]t is not the role of
this court to redetermine the credibility of experts or to reweigh
the relative strength of their conclusions.” (People v. Poe (1999)
74 Cal.App.4th 826, 831.) Accordingly, we conclude the Buyers
have not shown reversal is required based on the trial court’s
rulings relating to Shrenger’s testimony.7
declaration by appellants’ sole expert on the applicable standard
of care]; Borrayo v. Avery (2016) 2 Cal.App.5th 304, 307 [same];
Jeffer, supra, 234 Cal.App.3d at pp. 1435, 1437, 1443-1445
[holding trial court erred by precluding appellant’s expert from
testifying at trial].) Consequently, the analyses and holdings from
those cases do not assist the Buyers in showing reversible error.
7 At oral argument, the Buyers argued for the first time that,
in evaluating whether the trial court excluded Shrenger’s
testimony, we should disregard its prior rulings and the
comments in its oral decision showing it found Shrenger satisfied
“the threshold test of general testimonial qualifications.” (Jeffer,
supra, 234 Cal.App.3d at p. 1443.) Instead, they asserted we
must read footnote 3 of the statement of decision in isolation, and
12
II. Appellants have not shown reversal is required
based on the trial court’s exclusion of Zhang’s
deposition testimony at trial.
Next, the Buyers contend the judgment must be reversed
because the trial court erred by denying their request to read
portions of Zhang’s deposition testimony into the record at trial.
Again, as discussed below, we reject their argument.
Generally, a judgment may not be reversed “by reason of
the erroneous exclusion of evidence unless . . . it appears of record
that: [¶] (a) The substance, purpose, and relevance of the
excluded evidence was made known to the court by the questions
asked, an offer of proof, or by any other means[.]” (Evid. Code,
§ 354, subd. (a).) An offer of proof “‘must set forth the actual
evidence to be produced and not merely the facts or issues to be
addressed and argued.’” (Bowman v. Wyatt (2010) 186
construe it as a retroactive order excluding Shrenger’s testimony
based on his lack of qualifications. We need not address this
contention, as it was not raised in the Buyers’ appellate brief.
(Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017,
1027 fn. 2.) In any event, the argument is unpersuasive. As noted
above, in the footnote at issue, the trial court did not strike
Shrenger’s testimony. Instead, the court expressly acknowledged
that, through his declaration and in-person testimony, Shrenger’s
opinions had been received into evidence. It then stated it “puts
no reliance on his opinions” due to Shrenger’s lack of
qualifications and experience with Chinese real estate law and
practice. In context (and even if viewed in isolation), these
comments demonstrate the trial court correctly considered “the
degree of the witness’s knowledge” in evaluating “the weight of
the testimony rather than . . . its admissibility.” (Jeffer, at p.
1443.)
13
Cal.App.4th 286, 329; People v. Rodrigues (1994) 8 Cal.4th 1060,
1176, abrogated on another ground as explained in People v. Leon
(2020) 8 Cal.5th 831, 848 [“An offer of proof must consist of
material that is admissible, and it must be specific in indicating
the name of the witness and the purpose and content of the
testimony to be elicited”].)
During the Buyers’ presentation of rebuttal evidence at
trial, their counsel asked to read excerpts of Zhang’s deposition
testimony into the record. At that point, the trial court
questioned whether, on rebuttal, counsel could introduce the
deposition testimony of an expert witness who has been excluded.
Subsequently, the parties and the trial court engaged in a
lengthy dialogue regarding whether the excerpts of Zhang’s
deposition testimony could be read into the record. During this
exchange, the Buyers’ counsel identified the purpose for which he
sought to use the excerpts, i.e., to contradict the opinions
expressed by Gong in support of the Sellers’ case. However, at no
point before or after the court’s denial of his request did counsel
describe the substance of the deposition excerpts he sought to
introduce. Nor did counsel explain how those excerpts would
contradict the opinions expressed by Gong.
Accordingly, the record demonstrates the Buyers did not
“‘address the “substance, purpose, and relevance of the excluded
evidence” (Evid. Code, § 354, subd. (a)),’” as they did not “‘set
forth the actual evidence to be produced.’” (Bowman v. Wyatt,
supra, 186 Cal.App.4th at p. 329.) Instead, the Buyers only
discussed the “‘issues to be addressed and argued’” based on the
disputed evidence. (Ibid.) The Buyers therefore did not make an
adequate offer of proof regarding the excerpts of Zhang’s
deposition testimony they sought to introduce at trial. (See People
14
v. Rodrigues, supra, 8 Cal.4th at p. 1176 [offer of proof must
specify “the purpose and content” of the evidence to be introduced
(italics added)].) On this record, we cannot determine whether
the trial court’s exclusion of Zhang’s deposition testimony was
prejudicial, and conclude the Buyers failed to establish the
judgment must be reversed based on the asserted error. (See
Evid. Code, § 354, subd. (a); see also Gutierrez v. Cassiar Mining
Corp. (1998) 64 Cal.App.4th 148, 161 [“One function of an offer at
trial is to provide a reviewing court with the means of assessing
prejudice from any error [citation], thus enabling a party
challenging the judgment to meet its burden of affirmatively
showing reversible error by an adequate record” (original
italics)].)8
8 We acknowledge that, in asserting reversal is required
based on the exclusion of Zhang’s deposition testimony, the
Buyers rely heavily on: (1) the transcript of the final pretrial
status conference held on December 3, 2020; and (2) the
transcript of Zhang’s deposition. These documents, however, were
not included in the Clerk’s Transcript. Instead, they were
attached to the Buyers’ July 27, 2022 motion to augment the
record on appeal, which this court denied on August 17, 2022.
Because these documents are not part of the appellate record, we
decline to consider them or the Buyers’ arguments based thereon.
(See Protect Our Water v. County of Merced (2003) 110
Cal.App.4th 362, 364 [“When practicing appellate law, there are
at least three immutable rules: first, take great care to prepare a
complete record; second, if it is not in the record, it did not
happen; and third, when in doubt, refer back to rules one and
two”].)
15
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
16