Gong v. Wong CA2/1

Filed 11/18/22 Gong v. Wong CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JING GONG et al., B302494

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 18STCV10136)
v.

FRED A. WONG et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Dennis J. Landin, Judge. Affirmed.
Decker Law and James D. Decker for Plaintiffs and
Appellants.
Wong & Mak and Fred A. Wong; Benedon & Serlin,
Gerald M. Serlin and Melinda W. Ebelhar for Defendants and
Respondents.
____________________________
 Plaintiffs and appellants Jing Gong; Paul Woloski; GWG
Investment, LLC; and Ai Ying Gong (collectively, appellants) filed
suit against, inter alia, defendants and respondents Fred A.
Wong and Wong & Mak, LLP (an attorney and his law firm;
collectively, the Wong Defendants)1 for conversion and money
had and received. Appellants vaguely alleged in their complaint
that certain escrow funds belonging to Jing Gong were
improperly distributed to the Wong Defendants.
The Wong Defendants moved for summary judgment,
asserting the conversion and money had and received causes of
action were time-barred because more than three years before
appellants commenced the instant action, Jing Gong was aware
that the escrow funds had been distributed to one of the Wong
Defendants’ clients. In support of appellants’ opposition to the
motion, their trial counsel submitted a declaration requesting a
continuance of the motion hearing to allow him to seek discovery
of the Wong Defendants’ billing and payment records.
Appellants’ trial counsel claimed that these records could show
that any attorney fees the aforesaid client paid to the Wong
Defendants originated from the improperly disbursed escrow
funds. The trial court denied appellants’ request for a
continuance and granted the Wong Defendants’ summary
judgment motion.
On appeal, appellants claim the trial court erred in denying
their request for a continuance and in disregarding certain
procedural defects in the Wong Defendants’ separate statement
offered in support of their motion. We reject the first claim of

1 When we refer specifically to respondent Fred A. Wong,
we identify him as defendant Wong.

2
error primarily because appellants’ trial counsel’s declaration
did not establish that permitting them to obtain the billing and
payment records could have enabled appellants to overcome the
Wong Defendants’ statute of limitations defense. In particular,
even if those billing and payment records showed that the client
made payments to the Wong Defendants within the limitations
period, these documents alone would not have enabled appellants
to trace the payments to funds that the client received from the
escrow account. Appellants’ trial counsel did not identify any
sources of evidence that would allow him to bridge that
evidentiary gap, let alone describe the steps necessary to discover
such evidence.
Regarding the second claim of error, we conclude the Wong
Defendants’ failure to provide appellants with an editable version
of their separate statement and to leave space in the right
column of the document to insert their responses did not prevent
appellants’ trial counsel from preparing a response to the
separate statement. Rather, it seems their trial counsel simply
chose not to draft and file any such response.
Finding no error, we affirm.

PROCEDURAL BACKGROUND2
We summarize only those aspects of the procedural history
that are relevant to our disposition of the instant appeal.

2 We derive our Procedural Background in part from
admissions the parties make in their briefing, assertions the
Wong Defendants make in their respondents’ brief that
appellants do not controvert in their reply, and undisputed
aspects of the trial court’s order granting summary judgment.
(See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal)
[“ ‘[B]riefs and argument . . . are reliable indications of a party’s

3
1. Appellants’ complaint
On December 31, 2018, appellants filed a complaint against
the Wong Defendants; Te Chuan Chu; Ming Der Lin; Sincere
Escrow, Inc.; and Margaret Chiu,3 which alleges four causes of
action: (1) quiet title to real property, (2) breach of written
contract, (3) conversion, and (4) money had and received. The
only causes of action the complaint levels against the Wong
Defendants are the conversion and money had and received
claims. In addition to the Wong Defendants, Sincere Escrow,
Inc.; Chiu; and Chu are named as defendants on the conversion
cause of action, and Sincere Escrow, Inc.; Chiu; Chu; and Lin are
named as defendants on the money had and received cause of
action. Jing Gong is the sole plaintiff on the conversion and
money had and received causes of action.4

position on the facts as well as the law, and a reviewing court
may make use of statements therein as admissions against
the party.’ ”]; Rudick v. State Bd. of Optometry (2019)
41 Cal.App.5th 77, 89–90 (Rudick) [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”];
Baxter v. State Teachers’ Retirement System (2017)
18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts
provided in the trial court’s ruling]; Standards of Review, post
[noting that the trial court’s orders and judgments are presumed
correct].)
3 Chu; Lin; Sincere Escrow, Inc.; and Chiu are not parties
to this appeal.
4 The remainder of this section summarizes pertinent
allegations from appellants’ complaint. We express no opinion as
to the veracity of these averments.

4
 On or about December 15, 2005, Jing Gong borrowed
$310,000 from Chu and Lin, which was “secured by a promissory
note and deed of trust against a residence owned by Jing Gong
[on] . . . Walnut Avenue in Arcadia, California (the Walnut
property).” On or about December 11, 2007, Chu “cancelled the
Walnut property note and recorded a new deed of trust against”
“undeveloped property located [on] . . . Garvey Avenue[ in]
El Monte, California (the Garvey property)” pursuant to an
agreement between Jing Gong and Chu to refinance the loan
secured by the Walnut property. On or about February 5, 2010,
Chu and his counsel, the Wong Defendants, foreclosed on the
Garvey property by way of a trustee’s sale. “Chu made a full
credit bid of $431,933.00,” and “Chu took title with . . . Lin to the
Garvey property.”
On June 12, 2012, Chu filed an action in the Los Angeles
County Superior Court against Jing Gong and other defendants,
asserting claims for fraudulent concealment, fraudulent
conveyance, impairment of security interest, civil conspiracy, and
cancellation of instruments. “At some point before trial, the
parties entered into a written agreement to permit the sale of
[certain real] property and to deposit in . . . escrow the proceeds
in the sum of $230,836.00 with . . . Sincere Escrow[, Inc.]
and . . . Chiu pending the final outcome of the action.” “On
July 14, 2014[,] the trial court awarded judgment to . . . Chu and
against [Jing] Gong and her co-defendants in the total amount of
$1,090,636.90.” “Subsequently[,] the trial court issued an
amended judgment due to mathematical errors in the total
amount of $833,650.86.”
“On September 23, 2014[,] the Court of Appeal, Second
Appellate District . . . reversed the judgment and ordered that . . .

5
Chu shall recover nothing, except for $120,000.00 together with
any interest thereon, which . . . Jing Gong alleges has been fully
repaid to . . . Chu.” At some point “before the conclusion of the
litigation,” Sincere Escrow, Inc. and Chiu allegedly “distribut[ed]
to . . . Chu, . . . Lin, and or [sic] [the Wong Defendants] the
aforementioned escrow proceeds without the knowledge or
consent of [Jing] Gong . . . .”
“On or about August 21, 2015[,] the Los Angeles Superior
Court . . . entered judgment in favor of Gong[5] and against . . .
Chu in the net amount of $90,471.47 together with pre-judgment
interest at $9,047.14 per year or $24.78 per day. The trial court
offset the $120,000.00 that the Court of Appeal found was owed
by Gong to . . . Chu from the escrow funds of $230,835.33. The
trial court did so because it determined that . . . Chu had taken
the escrow monies ‘through the premature enforcement of his
judgment.’ ” “As the legal result of the conversion of [Jing
Gong’s] funds” and “the breach of contract by Defendants,” to wit,
the premature distribution of the escrow funds, “Jing Gong has
sustained monetary damages in the principal sum of $90,471.47
together with prejudgment interest thereon since
December 15, 2005 in the amount of $9,047.14 per year or
$24.78 per day.”

5 The Wong Defendants correctly point out this averment
from the complaint “does not specify whether ‘Gong’ is JING
GONG, . . . AI YING GONG, or both.”

6
2. The Wong Defendants’ summary judgment motion,
the briefing relating thereto, the trial court’s ruling
granting the motion, and appellants’ notice of appeal
On May 23, 2019, the Wong Defendants moved for
summary judgment on the ground that the claims for conversion
and money had and received are barred by their respective
statutes of limitation. Specifically, the Wong Defendants argued
that Jing Gong already knew more than three years before filing
suit that Chu had received the $230,835.33 in escrow funds, the
statute of limitations for conversion is three years, and the
limitations period for money had and received is two years.
On August 5, 2019, appellants filed their opposition to the
summary judgment motion. Appellants’ opposition was
accompanied by a declaration from their trial counsel in which he
“request[ed] that the Court either deny or continue the motion for
a sufficient time to allow for necessary discovery and motions to
compel.”6 Attached to appellants’ trial counsel’s declaration was
an e-mail the attorney had sent to the Wong Defendants’ counsel
on July 22, 2019, wherein the attorney asserted that the Wong
Defendants’ separate statement was defective because, inter alia,
it did “not conform to the format required by [California Rules of
Court, rule] 3.1350(d)(3) and (h).” In the e-mail, appellants’ trial
counsel also requested “an electronic version of the separate
statement.”
On August 8, 2019, the Wong Defendants filed a reply to
appellants’ opposition to the summary judgment motion.

6 We describe appellants’ trial counsel’s declaration in
further detail in Discussion, part A, post.

7
 On August 19, 2019, the trial court heard the Wong
Defendants’ motion, denied appellants’ request for a continuance,
and granted summary judgment. On September 9, 2019, the trial
court entered judgment in favor of the Wong Defendants in
accordance with the court’s ruling on their summary judgment
motion.7 On September 13, 2019, the Wong Defendants mailed a
notice of entry of the judgment to appellants’ trial counsel.
Appellants appealed the judgment on November 12, 2019.

STANDARDS OF REVIEW
“A party may move for summary judgment in an action or
proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding. . . .” (Code Civ.
Proc., § 437c, subd. (a)(1).)8 “A defendant . . . has met his or her
burden of showing that a cause of action has no merit if the party
has shown that one or more elements of the cause of action, even
if not separately pleaded, cannot be established, or that there is a
complete defense to the cause of action. Once the defendant . . .
has met that burden, the burden shifts to the plaintiff . . . to show

7 As we noted in Procedural Background, part 1, ante,
Jing Gong is the sole plaintiff on the conversion and money had
and received causes of action. Yet, the trial court entered
judgment in favor of the Wong Defendants and against all four
appellants. Nevertheless, because appellants do not address this
discrepancy at all in their briefing, we do not discuss it further.
(See Standards of Review, post [stating that appellants are
responsible for affirmatively demonstrating error by supplying
the reviewing court with cogent argument supported by legal
analysis and citation to the record].)
8Undesignated statutory citations are to the Code of Civil
Procedure.

8
that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto. The plaintiff . . . shall not
rely upon the allegations or denials of its pleadings to show that a
triable issue of material fact exists but, instead, shall set forth
the specific facts showing that a triable issue of material fact
exists as to the cause of action or a defense thereto.” (§ 437c,
subd. (p)(2).) “We review an order granting or denying summary
judgment or summary adjudication independently.” (Los Angeles
Unified School Dist. v. Torres Construction Corp. (2020)
57 Cal.App.5th 480, 492 (Los Angeles Unified School Dist.).)
“If it appears from the affidavits submitted in opposition to
a motion for summary judgment . . . that facts essential to justify
opposition may exist but cannot, for reasons stated, be presented,
the court shall deny the motion, order a continuance to permit
affidavits to be obtained or discovery to be had, or make any
other order as may be just.” (§ 437c, subd. (h).) “ ‘When a party
makes a good faith showing by affidavit demonstrating that a
continuance is necessary to obtain essential facts to oppose a
motion for summary judgment, the trial court must grant the
continuance request. [Citation.] . . . .’ [Citation.]” (Johnson v.
Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532
(Johnson).) “When a continuance of a summary judgment motion
is not mandatory, because of a failure to meet the requirements
of Code of Civil Procedure section 437c, subdivision (h), the court
must determine whether the party requesting the continuance
has nonetheless established good cause therefor.” (Lerma v.
County of Orange (2004) 120 Cal.App.4th 709, 716 (Lerma).)
We review a trial court’s ruling on a request for a
continuance of a summary judgment hearing under the abuse of
discretion standard. (Chavez v. 24 Hour Fitness USA, Inc. (2015)

9
238 Cal.App.4th 632, 643 [“We review a court’s ruling on a
request for a section 437c, subdivision (h) continuance for
abuse of discretion.”]; see Lerma, supra, 120 Cal.App.4th at
pp. 711–712, 716 [applying the abuse of discretion standard to a
continuance request supported by an affidavit that did not satisfy
the requirements of section 437c, subdivision (h)].) Likewise,
because “the [trial] court’s power to deny summary judgment on
the basis of” “procedural[ ] defect[s]” in the movant’s separate
statement is “discretionary, not mandatory,” we review a court’s
declination to exercise that power for abuse of discretion. (See
Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 (Truong).) To
satisfy the abuse of discretion standard, an appellant must show
the trial “ ‘court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.’ [Citation.]” (See Franceschi v. Franchise
Tax Bd. (2016) 1 Cal.App.5th 247, 256–257 (Franceschi).)
“ ‘A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.’ [Citation.]” (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981.) Thus, “ ‘ “it is the
appellant’s responsibility to affirmatively demonstrate error[,]” ’ ”
and “ ‘ “review is limited to issues which have been adequately
raised and briefed.” ’ [Citation.]” (See Los Angeles Unified
School Dist., supra, 57 Cal.App.5th at p. 492.) “ ‘[T]o
demonstrate error, an appellant must supply the reviewing court
with some cogent argument supported by legal analysis and
citation to the record.’ [Citation.]” (Hernandez v. First Student,
Inc. (2019) 37 Cal.App.5th 270, 277.) The appellant bears this
burden of rebutting the presumption of correctness accorded to
the trial court’s decision, regardless of the applicable standard of

10
review. (See Los Angeles Unified School Dist., at p. 492 [noting
that these principles apply to “ ‘ “an appeal from any
judgment” ’ ”]; see also Orange County Water Dist. v. Sabic
Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, 399
[indicating that an appellant must affirmatively show the trial
court erred even if the de novo standard of review applies].)

DISCUSSION
Appellants raise two claims of error: (1) the trial court
should have granted their request for a continuance of the
summary judgment hearing to allow them to conduct further
discovery, and (2) the court erred in disregarding certain “defects”
in the Wong Defendants’ separate statement.9
Appellants do not, however, argue that the trial court erred
in concluding, based on the evidence presented in connection with
the Wong Defendants’ motion, that Jing Gong’s “third and fourth
causes of action against [the] Wong Defendants are barred by the
statute of limitations” because (1) “the statute of limitation[s] for
conversion is three years, and for money had and received [is] two
years”; (2) “[t]he records show that the distribution of the
$230,835.33 in escrow funds occurred on January 14, 2013”;
(3) the conversion and money had and received causes of action
accrued “no later than March 2, 2015,” which is the date on which

9 Appellants also purport to raise a third claim of error, to
wit, the trial court erred in concluding that appellants had not
adequately alleged and/or offered sufficient evidence establishing
the essential elements of Jing Gong’s conversion and money had
and received causes of action. Because this contention concerns
the trial court’s rationale for denying appellants’ request for a
continuance of the hearing, we address that argument in
Discussion, part A, post.

11
Jing Gong executed a declaration indicating she “knew that Chu
had received the $230,835.33 in escrow funds,” which declaration
Jing Gong submitted in support of a motion for restitution she
filed on April 14, 2015 in the previous lawsuit; and (4) “the
present action was filed on December 31, 2018[,] outside
[the] limitations periods for conversion and money had and
received.” Consequently, appellants waive any challenge to those
aspects of the trial court’s order, and we discuss only the two
claims of error appellants raise in their briefing.10

A. Appellants Fail To Establish the Trial Court Abused
Its Discretion In Denying Their Request for a
Continuance of the Summary Judgment Hearing
Appellants contend their trial counsel submitted a
declaration satisfying section 437c, subdivision (h)’s requirements
for requests for continuance of summary judgment hearings.
Specifically, appellants argue counsel’s declaration “described
how he was served with the motion after the first session of
[defendant] Wong’s deposition, at which [defendant] Wong failed
to produce requested documents demonstrating payment of
attorneys’ fees from his client, Chu, following release of the
subject escrow proceeds,” and that appellants’ trial counsel
“stated that [defendant] Wong failed to produce the records

10 (See Los Angeles Unified School Dist., supra,
57 Cal.App.5th at p. 492 [“ ‘ “[Appellate] review is limited to
issues which have been adequately raised and briefed.” ’ ”];
Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956 [“ ‘ “When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.” ’ ”].)

12
following the second session” of his deposition. According to
appellants, “[t]he declaration further established that, based on
discovery received (i.e., correspondence from Wong to
[a]ppellants’ former counsel), . . . Chu was destitute at or about
the time he received the disbursed escrow funds, thereby
suggesting that at least some portion of the escrow funds (i.e., the
funds belonging to [a]ppellants) were indeed transferred to [the
Wong Defendants].” Appellants maintain “[t]he requested
discovery was necessary to the opposition of the [motion], as it
would have shown when [the Wong Defendants] received the
funds in question—and thus when [a]ppellants’ claims accrued.”
They also argue that even if counsel’s declaration did not satisfy
section 437c, subdivision (h), the trial court should have exercised
its discretion to grant a continuance, primarily because the
motion had been filed at a relatively early stage of the
proceedings.
In its order on the Wong Defendants’ motion, the trial court
stated it did “not believe that further discovery of [the] Wong
Defendants’ billing and payment records [could] overcome” the
“defects” warranting the entry of summary judgment, that is, the
fact the conversion and money had and received claims were
time-barred. The court observed that “ ‘money cannot be the
subject of a conversion action unless a specific sum capable of
identification is involved[,]’ ” and that “[t]here is no allegation in
the Complaint or any evidence presented to show that [the] Wong
Defendants were paid an identifiable sum by Chu from the
escrow money.” (Quoting Software Design & Application, Ltd. v.
Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 485 (Software
Design & Application, Ltd.).) In connection with the money had
and received cause of action, the trial court stated: “Even with

13
further discovery of [the] Wong Defendants’ billing records, the
Court highly doubts that [appellants] can establish [a] direct
connection between the escrow money and attorneys’ fee that
[the] Wong Defendants rightfully earned from representing Chu.”
The court further observed that “ ‘an action for money had and
received will lie to recover money paid by mistake, under duress,
oppression or where an undue advantage was taken of plaintiffs’
situation whereby money was exacted to which the defendant had
no legal right.’ ” (Quoting J.C. Peacock, Inc. v. Hasko (1961)
196 Cal.App.2d 353, 361, italics added by this court.)
As a preliminary matter, appellants argue the trial court
erred in discussing whether Jing Gong could establish the
essential elements of her conversion and money had and received
causes of action because “[t]he motion here was based exclusively
on the [Wong Defendants’] statute of limitations argument . . . .”
Appellants are mistaken.
The trial court correctly noted—and appellants do not
dispute—that “ ‘[a] cause of action accrues at “the time when the
cause of action is complete with all of its elements.” ’ [Citation.]”
(Quoting Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
806.) “ ‘ “ ‘ “Ordinarily this is when the wrongful act is done and
the obligation or the liability arises, but it does not ‘accrue until
the party owning it is entitled to begin and prosecute an action
thereon.’ ” . . . In other words, “[a] cause of action accrues ‘upon
the occurrence of the last element essential to the cause of
action.’ ” ’ ” ’ [Citation.]” (Choi v. Sagemark Consulting (2017)
18 Cal.App.5th 308, 323, initial italics added.) Consequently,
whether the Wong Defendants’ receipt of payments from Chu for
legal services gives rise to liability for conversion and money had
and received is a matter that is intertwined with whether those

14
claims have an accrual date that renders them timely. Thus, the
trial court did not err in assessing the merits of those two causes
of action in the course of determining whether discovery of the
Wong Defendants’ billing and payment records would enable Jing
Gong to overcome their statute of limitations defense.
Next, appellants argue the trial court erred in concluding
that Jing “Gong’s conversion claim failed as [a] matter of law
[because] ‘there is no allegation in the Complaint or any evidence
presented to show that [the] Wong Defendants were paid an
identifiable sum by Chu from the escrow money.’ [Citation.]” In
particular, they contend “the Complaint alleges that [the Wong
Defendants] received [$]230,836.00 from escrow, $90,471.14 of
which belonged to [a]ppellants, which [the Wong Defendants]
failed to return.”
The trial court correctly found that appellants did not
allege in their complaint that Chu paid an identifiable sum from
the escrow funds to the Wong Defendants. Rather, appellants
had averred that Sincere Escrow, Inc. and Chiu “distribut[ed]
to . . . Chu, . . . Lin, and or [sic] [the Wong Defendants] the
aforementioned escrow proceeds without the knowledge or
consent of . . . [Jing] Gong . . . .”11 Furthermore, appellants

11 At one point in the complaint, appellants averred that
“Defendants” “distribut[ed] to Te Chaun [sic] Chu, Ming Der Lin,
and or [sic] [the Wong Defendants] the aforementioned escrow
proceeds without the knowledge or consent of Plaintiff Gong and
before the conclusion of the litigation.” Even if these
“Defendants” who allegedly distributed the escrow funds included
Chu, and the Wong Defendants supposedly were the recipients of
those funds from Chu, Jing Gong could not survive summary
judgment by relying on this vague assertion from the complaint.
(See Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040,

15
do not contest the trial court’s finding that “[t]here is no . . .
evidence . . . show[ing] that [the] Wong Defendants were paid an
identifiable sum by Chu from the escrow money.” The absence of
this evidence is fatal to appellants’ resort to an accrual date that
would yield a timely conversion claim against the Wong
Defendants, given that “money cannot be the subject of a
conversion action unless a specific sum capable of identification is
involved.” (See Software Design & Application, Ltd., supra,
49 Cal.App.4th at p. 485, italics added.) Similarly, Jing Gong
could show her money had and received claim is timely only if she
could demonstrate that within the limitations period, Chu in fact
paid the Wong Defendants money Chu had obtained from the
escrow fund. (See Gutierrez v. Girardi (2011) 194 Cal.App.4th
925, 937 [noting that a plaintiff may recover on a money had and
received claim “ ‘wherever one person has received money which
belongs to another, and which in equity and good conscience
should be paid over to the latter[,]’ ” italics added].)
Furthermore, even if the trial court had permitted
appellants to discover and thereafter proffer the Wong
Defendants’ billing and payment records, the conversion and
money had and received claims would still have failed. In his
declaration, appellants’ trial counsel asserted: “Based upon
correspondence from [defendant] Wong to other counsel then
representing [Jing Gong] which was produced in discovery,
[defendant] Wong asserts that his client Te Chaun [sic] Chu at or
about the time he received the wrongfully disbursed escrow
money was broke and was unable to make restitution to [Jing

1054 [“It is fundamental that to defeat summary judgment a
plaintiff must show ‘specific facts’ and cannot rely on allegations
of the complaint.”].)

16
Gong].[12] This suggests that it was more likely than not that any
attorney fees paid by Chu to [defendant] Wong following the
escrow distribution came from those funds.”
Appellants’ trial counsel did not submit a copy of the
correspondence from defendant Wong referenced within his
declaration, specifically identify the timeframe in which
defendant Wong had asserted his client was “broke,” or elaborate
further on the meaning of that term (e.g., whether Chu had no
assets whatsoever or simply did not have sufficient assets to pay
an unspecified amount of restitution to Jing Gong). Without
further evidence concerning Chu’s financial state at the points in
time at which he received the escrow funds and had paid the
Wong Defendants for legal services, a trier of fact would have to
resort to speculation to find that any of the payments to the
Wong Defendants are traceable to the escrow funds rather than
to some independent source(s) of money.13 (See Granadino v.

12 Appellants’ trial counsel did not further describe the
“restitution” he claims Chu was unable to make to Jing Gong.
Furthermore, although the trial court observed in its summary
judgment ruling that Jing Gong “filed [a] Motion for Restitution
in her previous lawsuit on April 14, 2015,” Jing Gong filed that
motion more than two years after the escrow funds were
distributed to Chu. It is thus unclear whether the restitution
Jing Gong sought in the prior proceedings is the restitution that
appellants’ trial counsel believed Chu was supposedly unable to
pay “at or about the time he received the wrongfully disbursed
escrow money . . . .”
13 The Wong Defendants point out that in the opposition to
the motion, appellants asserted that defendant Wong “testified at
his deposition that he received payments from Chu ‘which he
believed came from the subject escrow funds.’ ” The Wong
Defendants insist that this “accusation appears in the unverified

17
Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 418 [“To
defeat summary judgment, [nonmovants] cannot rely on
‘speculation, conjecture, imagination, or guesswork.’ ”].)
Furthermore, appellants’ trial counsel did not identify any
potential sources of evidence concerning Chu’s financial state
upon which appellants could seek discovery, let alone express any
intention to conduct such discovery or specify the steps or
procedures counsel would undertake to procure such evidence.
In sum, because discovery of the Wong Defendants’ billing
and payment records could not have allowed Jing Gong to avoid
summary judgment on her conversion and money had and
received claims against these defendants, the trial court did not
act in an arbitrary, capricious, or patently absurd manner in
denying the request for a continuance.14

Points & Authorities of the Opposition and therefore does not
constitute evidence,” and that “[a]t no time during . . . WONG’s
deposition did he state that all, or any part, of the payment
received by . . . WONG & MAK for the representation of Chu
came from the escrow account maintained by Sincere Escrow.”
By failing to respond to these claims in their reply brief,
appellants impliedly disclaim any reliance on this supposed
deposition testimony from defendant Wong. (See Rudick, supra,
41 Cal.App.5th at pp. 89–90 [concluding that the appellants made
an implicit concession by “failing to respond in their reply brief to
the [respondent’s] argument on th[at] point”]; Fierro v. Landry’s
Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5 [holding
that “we are unable to accept counsel’s argument . . . as facts”
and that “ ‘unsworn averments in a memorandum of law
prepared by counsel do not constitute evidence’ ”].)
14 (Franceschi, supra, 1 Cal.App.5th at pp. 256–257
[describing the abuse of discretion standard]; see Johnson, supra,
205 Cal.App.4th at p. 532 [“An opposing party’s declaration in

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B. Appellants Do Not Show the Trial Court Abused Its
Discretion in Granting Summary Judgment
Notwithstanding the Wong Defendants’ Failure to
(1) Utilize the Proper Two-Column Format in Their
Separate Statement and (2) Provide Appellants with
an Editable Version of the Separate Statement
California Rules of Court, rule 3.1350(d)(3) provides that
the movant’s separate statement of undisputed material facts
“must be in the two-column format specified in (h),” and that
“[t]he statement must state in numerical sequence the
undisputed material facts in the first column followed by the
evidence that establishes those undisputed facts in that same
column.” (See Cal. Rules of Court, rule 3.1350(d)(3); id.,
rule 3.1350(d)(1) [indicating the separate statement discussed in
rule 3.1350(d)(3) is “[t]he Separate Statement of Undisputed

support of a motion to continue the summary judgment hearing
should show[, inter alia,] . . . ‘[f]acts establishing a likelihood that
controverting evidence may exist and why the information sought
is essential to opposing the motion’ . . . and . . . ‘[t]he specific
steps or procedures the opposing party intends to utilize to obtain
such evidence’ ”]; cf. Jade Fashion & Co., Inc. v. Harkham
Industries, Inc. (2014) 229 Cal.App.4th 635, 653–657 [holding
that the trial court did not err in denying a nonmovant’s request
for a continuance of a summary judgment hearing because the
party “failed to show how facts essential to its opposition could be
obtained by deposing [the movant’s] attorney” given that,
although the movant’s attorney could offer testimony relevant to
the nonmovant’s unclean hands defense (i.e., evidence showing
the attorney “intentionally misrepresented” that the nonmovant’s
check was “returned unpaid due to unavailable funds”), that
evidence would not have been sufficient to enable the movant to
survive summary judgment based on that defense].)

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Material Facts in support of a motion”]; id., rule 3.1350(a)(1)
[defining “ ‘[m]otion’ ” for the purposes of this rule as “either a
motion for summary judgment or a motion for summary
adjudication”].) California Rules of Court, rule 3.1350(h) requires
that separate statements adhere to a two-column format in which
the movant’s undisputed material facts and supporting evidence
appear in the lefthand column in order to allow the nonmovant to
prepare an opposing separate statement in which the nonmovant
could insert its “[r]esponse and [s]upporting [e]vidence” in the
righthand column directly adjacent to each of the movant’s
undisputed material facts. (See id., rule 3.1350(h).)
Additionally, California Rules of Court, rule 3.1350(i)
provides: “On request, a party must within three days provide to
any other party or the court an electronic version of its separate
statement. The electronic version may be provided in any form
on which the parties agree. If the parties are unable to agree on
the form, the responding party must provide to the requesting
party the electronic version of the separate statement that it used
to prepare the document filed with the court. Under this
subdivision, a party is not required to create an electronic version
or any new version of any document for the purpose of
transmission to the requesting party.” (Cal. Rules of Court,
rule 3.1350(i).)
Appellants contend the Wong Defendants violated each of
these rules. First, appellants argue the Wong Defendants “left
no room for [a]ppellants to input their response to [the] . . .
purportedly undisputed facts” on the separate statement because
the Wong Defendants “included their evidentiary citations in the
right-hand column (which, of course, belonged in the left-hand
column).” Second, appellants contend their trial counsel

20
requested from the Wong Defendants an electronic copy of their
separate statement on July 22, 2019, and that the Wong
Defendants did not respond to that request until 14 days after
appellants’ trial counsel asked for it, which was “just one day
before the deadline to submit [their] opposition).” Third,
appellants complain “the electronic copy that [the Wong
Defendants] claimed to have provided was in a non-editable
format, i.e., pdf,” and was not in the “editable format” the
Wong Defendants’ counsel must have used to prepare the
separate statement (e.g., a format “used [by] Microsoft Word”).
The Wong Defendants admit that their “Separate Statement did
not provide the supporting evidence in the left hand column of
the document, but instead listed the evidence in the right hand
column”; and that they provided a .pdf copy of the separate
statement to appellants. Appellants insist “these defects” had
“precluded [them] from responding to [the Wong Defendants’]
separate statement . . . .”
We observe that the Wong Defendants’ separate statement
is only eight pages in length. Furthermore, the proof of service
accompanying the separate statement shows the Wong
Defendants mailed this document to appellants’ trial counsel on
May 23, 2019. Appellants do not contest the validity of this proof
of service or show that delivery of this document to their attorney
had somehow been delayed.15 In addition, appellants concede

15 Appellants claim in their opening brief that “[t]he MSJ
was served on June 14, 2019,” but neither of the documents they
cite supports that proposition.

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their opposition to the summary judgment motion was not due
until August 6, 2019.16
Thus, appellants’ trial counsel had more than two months
to copy the Wong Defendants’ eight-page separate statement
manually into an editable electronic format in which the
Wong Defendants’ evidentiary citations would appear in the left
column of each page. Yet, the record does not contain any
responsive separate statement from appellants. It thus appears
that, instead of undertaking this commonsense measure to
oppose the summary judgment motion, appellants’ trial counsel
chose not to prepare and file a separate statement at all.
Under these circumstances, we conclude the trial court
did not act in an arbitrary, capricious, or patently absurd manner
when it granted the Wong Defendants’ summary judgment
motion notwithstanding the procedural defects raised by
appellants.17 (Franceschi, supra, 1 Cal.App.5th at pp. 256–257;
cf. Truong, supra, 181 Cal.App.4th at p. 118 [concluding that a
trial court had the discretion to overlook a movant’s alleged
failure to include the headings required by California Rules
of Court, rule 3.1350(d) in a separate statement because the
nonmovants had “not explained how any alleged deficiency . . .

16 (See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2
[noting that we may construe a statement in a brief as an
admission against the party making it].)
17 In light of our disposition, we do not address the
Wong Defendants’ other arguments in support of the judgment,
including their contentions that appellants improperly included
certain documents in their appendix, and that appellants’ failure
to provide a record of the oral proceedings in the trial court is
fatal to their appeal.

22
impaired [their] ability to marshal evidence to show that material
facts were in dispute”].)

DISPOSITION
The judgment is affirmed. Defendants and respondents
Fred A. Wong and Wong & Mak, LLP are entitled to their costs
on appeal.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

WEINGART, J.*

* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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