Filed 6/18/14 Gilmore Bank v. Dalrymple CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

GILMORE BANK et al., Plaintiffs and Respondents,

v. CINDY DALRYMPLE et al, Defendants and Appellants. G047902
(Super. Ct . No. 30-2011-00452056)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Frederick P. Horn, Judge. Affirmed. Pacific Business Law Group, APC an d James M. Jimenez for Defendants and Appellants. Hallstrom, Klein & Ward and Davi d T. Ward for Plaintiffs and Respondents.

* * *2 Plaintiffs Gilmore Bank and Jay Cho seek to collect a $3.2 million judgment from judgment debtor, Cindy Dalrymple. 1 Toward this end, they have sued Cindy and other defendants for fraudulently transferring and sequestering her assets. This appeal concerns the trial court’ s order granting plaintiffs’ motion for a preliminary injunction requiring defendants to repatriate to the United States all assets they transferred to a New Zeala nd trust and into a Swiss annuity. 2 Defendants contend the court abused its discretion by granting the injunction. They argue insufficient evidence supports the court’s underlying fact ual findings. Defendants, however, have waived this issue by disregardi ng their obligation to provide a summary of the significant facts in their opening brief. (Cal. Rules of Court, rule 8. 204(a)(2)(C).) And, in any event, abundant substantial evidence suppor ts the court’s findings. Accordingly, we

affirm the court’s order.

1 For ease of reference and to avoid confusion, we sometimes refer to Cindy Dalrymple and her niece, Sonia Jolene Dalrym ple, by their first names. We intend no disrespect.

2 The court’s order also froze defe ndants’ assets (except for scheduled disbursements for Cindy’s livin g expenses), and restrained defendants from transferring any real or personal pr operty held or controlled by them or their agents or trustees. Defendants do not challenge th ese parts of the order. The court’s order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(6). All further st atutory references are to the Code of Civil Procedure unless otherwise stated.3 FACTS 3

The Underlying Judgment and Cindy’ s Initial Transfers of Her Assets In 1992, Cindy and her partner formed a company named Alliance Technology, Inc. (ATI), to ma ke electrical components fo r Aviza. Thus, Aviza was always ATI’s primary customer. In 2000 , Cindy became the sole owner of ATI. In a December 2006 meeting with Cin dy, several high-ranking officials of Aviza told her that Aviza planned to outsource much of its business to another supplier. Although the timing of the switch was uncertain , Cindy realized that her company, ATI, faced a big drop in volume and profitability. Cindy quickly engaged a broker to tr y to sell ATI. In August 2007, she began negotiations to sell ATI to plaintiff Ch o in a transaction financed by plaintiff Gilmore Bank. During the negotiations, Cindy did not tell plaintiffs, or even her own broker, of ATI’s impending loss of much of Av iza’s business. Instead, she said ATI’s relationship with Aviza had surv ived for 16 years and was likely to continue indefinitely, and that there had been no change in the re lationship. Cindy bl ocked plaintiffs from directly questioning Aviza durin g the due diligence period, sa ying she “did not want them to impact her relationship with” Aviza before the sale closed. In December 2007, Cindy sold ATI to Cho for $2.2 million. Gilmore Bank financed Cho’s purchase. Within six m onths of the sale, ATI’s revenues dropped precipitously and it laid off all its workers and closed. Cho commenced arbitration pr oceedings against Cindy for misrepresentation and other causes of action.

3 We take the facts from the declarati ons and exhibits that were before the court when it ruled on plaintiffs’ motion for a preliminary injunction. Defendants’ opening brief contains virtually none of the facts recited in this opinion.4 In October 2009, Cindy retained a ttorney William Norman for the alleged purpose of preparing her estate and retiremen t plan. Norman knew th at a claim for over $1 million had been lodge d against Cindy for misrepresenta tions and nondisclosure in the

sale of her business. In December 2009, Cindy owned over $5 million in a ssets, including over $3.5 million in cash and se curities and over $1 m illion worth of real es tate. That month, she formed a Wyoming lim ited liability company (L LC) named Enchantment Management, LLC (Enchantment), of which she was the president, a manager, and a member with a 99 percent interest. The next month, she transferred $3 million in cash and securities into the newly formed account of another LL C set up by Norman, this one called the CD Investment Series LLC (CDI S), of which Enchantment was the manager and initially its sole member. On January 12, 2010, th e second day of the arbitration hearing, Cindy

formed a trust — the CD Private Retirement Trust (Cindy’s Retirement Trust) — and appointed her 25-year-old niece, Sonia, as the trustee. At its inception, Cindy’s Retirement Trust owned 99 percent of CDIS (which held two real properties and over $3.5 million in cash and securities). Cindy’s Re tirement Trust provides that the trustee is to pay Cindy $203,000 of trust income or ca pital every year during Cindy’s lifetime. On January 19, 2010, the three-arbitrator panel in the arbitration proceeding

issued an interim award in Cho’s favor. The arbitrators found that, during the sale negotiations, Cindy made false and misleading st atements to plaintiffs and failed to tell them that ATI faced a significant loss of bu siness and that its sa les volume and profits would plummet. The award ordered Cindy to pa y Cho over $3 million in damages, as well as attorney fees and costs. In mid-January of 2010, attorney Norman learned of the arbitration award against Cindy. Norman realized that a re serve had to be built in to Cindy’s retirement plan to cover the claim. He believed that a reserve of $1.4 million would be sufficient.5 (In an October 2012 deposition, he testified the reserve was in the form of Cindy’s real properties, collectibles, automobile, and a Roth individual retirement account (IRA).) But in reality, no such re serve was set aside. The final arbitration award, da ted March 25, 2010, awarded Cho approximately $3.2 million. In June 2010, the court entered a judgment of almost $3.3 million on the arbitration award in plaintiffs ’ favor against Cindy and ATI. Cindy resigned as manager of Enchantm ent in April 2010. But she retained possession of a checkbook until 20 12 and continuously served as Sonia’s “advisor” with respect to the trust.

Plaintiffs’ Action Against Cindy for Fraudulently Transferring Her Assets In February 2011, plaintiffs sued Cindy, Sonia (as trustee of Cindy’s Retirement Trust), Enchantment, other LLCs , Norman’s law firm, and other defendants

for fraudulent transfers and other causes of ac tion. (In this opinion we refer to Cindy, Sonia, and the defendant entities collectively as “the Dalrymple defenda nts.”) Plaintiffs’ complaint alleged that, at th e start of the arbitration pr oceeding, Cindy owned assets valued at over $5 million, but during the procee ding, as her liability became clear, she frantically formed trusts and ot her entities, fraudulently transf erred her assets to them in order to hinder plaintiffs fro m collecting their claims, and ap pointed Sonia as the trustee or manager of the newly formed trusts and entitie s. Plaintiffs further alleged that Cindy’s Retirement Trust initially held $3 million in stocks and bond s (as well as a significant

amount of cash and other a ssets), but, recently, $1 million of its assets had “disappeared.” Plaintiffs further alleged that defendants knew that plaintiffs would satisfy their judgment from Cindy’s assets, but defendants nonethel ess fraudulently concealed and transferred Cindy’s assets to hinder, delay, and defraud plaintiffs.6 Cindy’s Transfer of Her Assets Overseas In December 2010, at the recommendati on of her attorney, Sonia formed an irrevocable trust (“the New Zealand Trust”), of which As iaTrust New Zealand Limited was the trustee, and Sonia (trustee of Cin dy’s Retirement Trust) was the settlor. The

beneficiaries of the New Zealand Trust are the trustee and beneficiaries of Cindy’s Retirement Trust, including Ci ndy. The trust deed empowers Sonia to carry out her fiduciary duties to Cindy (the beneficiar y of Cindy’s Retirement Trust) and to

recommend to AsiaTrust that retirement benef its be paid directly to beneficiaries of Cindy’s Retirement Trust. In June 2011, Cindy tran sferred $2.5 million to Sw issGuard International, Gmbh (SwissGuard), as well as $500,000 to “Checking Legal.” Pursuant to her attorney’s directions, Sonia sent the $500,000 to the Ne w Zealand Trust. In September 2011, SwissGuard i ssued a Swiss annuity certificate reflecting that (1) the New Zeal and Trust is the owner and be neficiary of the annuity, (2) the insured person is Cindy, (3) the annuity was purchased for $2 .5 million, (4) the annuity pays about $67,500 ever y quarter, and (5) the annuity income is payable so long as Cindy lives. At the time the annuity wa s issued, Cindy was 55 years old. Three months earlier, in June 2011, SwissGuard ha d advised Cindy that it would be “[v]ery easy” to cash in the annuity and that the proc ess would normally take from 30 to 45 days. In September 2011, Sonia authorized the distribution of $70,000 from the New Zealand Trust to Cindy’s Retirement Trus t. Sonia’s understanding was that the Swiss annuity makes payments to the New Zealand Trust, which holds the money until Sonia requests it. The annuity makes paym ents of around $67,000 every quarter, which equals about $250,000 per year. In a June 2012 deposition, Sonia testif ied, as to the $500,000 she sent to the New Zealand Trust, she had no idea where in New Zealand or in what form the funds are held, or who is a signatory to the account or otherwise ha s access to the money, or7 whether she can retrieve the money. Sh e did not know whether the $500,000 constituted a fee, or an investment, or how it should be characterized. Similarly, as to the quarterly payments from the Swiss annuity to the New Zealand Trust’s account , Sonia had no idea

where in New Zealand th e account was maintained. In June 2012, plaintiffs amended th eir complaint to name AsiaTrust (as trustee of the New Zealand Trust) as a defendant. In February 2014, we held that the trial court had personal jurisdiction over AsiaTrust. ( Gilmore Bank v. AsiaTrust New Zealand

LTD. (2014) 223 Cal.App.4th 1558.)

Preliminary Injunction On July 10, 2012, plain tiffs moved for a preliminar y injunction, alleging that, in around September 2011, defendant s had “moved and sequestered [Cindy’s] assets . . . to an off-shore trust and annuity in a blatant attempt to move them beyond the jurisdiction of the Court and out of reach of collection on the Judgment.” Plaintiffs sought a preliminary injunction, asking the court to, inter a lia, “order that the off-shore assets be repatriated to the United States to restore the status quo.” In a supporting declaration, plaintiffs’ attorney described his recent discovery of defendants’ offshore trust. He declared he had filed 20 motions to compel production of documents, before defendants finally responded and produced over 10,000 documents on April 30 or May 1 of 2012. Based on those documents, the attorney’s firm deciphered that $2.5 million had been transferred offshore through a New Zealand trust into a Swiss annuity. Plaintiffs’ a ttorney asked defense counsel for the trust document, which was not produced by defendants until J une 2012. Plaintiffs’ counsel then learned that $3 million of Cindy’s assets — i.e., all her liquid assets — were held by the New Zealand Trust. The documents produ ced by defendants further revealed that in September 2011, CDIS had sold one of her real properties. Additionally, between 20118 and 2012, defendants had transferred at least $ 500,000 to their counsel, James Jimenez of the Pacific Business Law Group. In another supporting declaration, an estate and tax planning attorney declared that Cindy’s trust, LLCs, and re tirement plan include Cindy as the creator, beneficiary, and person with ultimate contro l and therefore afford her no estate tax savings (a typical goal of a retirement pl an), nor does her offshore trust or annuity generate any estate tax savings. In orde r to be exempt from collection of money judgments, the retirement plan must have be en established for retirement purposes only. Because Cindy and the other persons who create d her retirement plan knew of the claims and liabilities asserted against her at the tim e they established her retirement plan, the plan did not meet the requirement of being established for retirement purposes only. The attorney opined “the plan wa s created solely for the purpose of avoiding a known and existing creditor’s claim” and that withdraw als from the plan were “not being used primarily for ‘retirement purposes.’” Defendants’ opposition to plaintiffs’ preliminar y injunction motion was supported by the declarations of Cindy, Sonia, Norman, and their counsel, Jimenez. On December 3, 2012, the court gran ted plaintiffs’ motion for a preliminary injunction requiring defendants to, inter alia, repatriate to the United States all assets they

transferred to the New Zealand Trust and the Swiss Annuity.

DISCUSSION

Defendants contend the court abused its discretion by granting plaintiffs’ motion for a preliminary injunction. They argue the court could not have properly concluded that (1) plaintiffs we re likely to prevail on the merits at trial, or (2) plaintiffs were likely to suffer irreparable harm absent a preliminary injunction.9 “[T]he decision to grant a prelim inary injunction rests in the sound discretion of the trial court.” ( IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) “[T]rial courts should evaluate two interrela ted factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on

the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that th e defendant is likely to suffer if the preliminary injunction were issued.” ( Id. at pp. 69-70.) “An appeal from an order granting a preliminary injunction involves a

limited review of these two factors — likelih ood of success on the merits and interim

harm. If the trial court abused its discreti on on either factor, we must reverse.” ( Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625 ( Shoemaker ).) In conducting this limited review, we do “not ‘resolve conflicts in the evidence, reweigh the evid ence, or assess the credib ility of witnesses.’” ( ReadyLink

Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 10 16.) Instead, we view the evidence in the light most favorable to the pr evailing party, draw in ferences in favor of upholding the court’s order ( Schwartzman v. Wilshinsky (1996) 50 Cal.App.4th 619, 626), and imply all findings necessary to support the order ( In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928). Our “task is to ensure that the trial court’s factual determinations, whether express or implied, are supported by substantial evidence.” ( Shoemaker , supra , 37 Cal.App.4th at p. 625

. ) 4 A trial court’s order “must be upheld if it

4 At the hearing on plaintiffs’ motion for a preliminary injunction, the court stated that its tentative ru ling would “be the ruling.” Th e court’s minute order granting plaintiffs’ motion, however, does not expressl y incorporate or adopt the court’s tentative ruling. Defendants, relying on Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 2 82, 300, contend we are “ limited to review of the minute order . . . and must disregard the tentativ e ruling . . . .” We need not address their contention, as we can easily discern the cour t’s implied findings w ithout resort to its tentative ruling. “Implicit in the court’s or der granting the preliminary injunction is the fact that the trial judge resolved . . . c onflicts in favor of the plaintiffs.” ( Wind v. Herbert (1960) 186 Cal.App.2d 276, 284.)10 is supported by substantial evidence, no matter how slight it may be.” ( Schwartzman , at p. 626.) Defendants bear the burden “‘to make a clear showing of an abuse of discretion.’” ( Shoemaker , at p. 624.) The usual purpose of a preliminary inj unction is to preserve “the status quo

until a final determination of th e merits of the action.” ( Continental Baki ng Co. v. Katz (1968) 68 Cal.2d 512, 528.) “‘Where, as here, the preliminary injunction mandates an affirmative act that changes the status quo, [i.e., in the case of a mandatory injunction,]

we scrutinize it even more closel y for abuse of discretion.’” ( Shoemaker , supra , 37 Cal.App.4th at p. 625.) It has been said that a “‘“preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.”’” ( Id. at p. 626.) Yet, the “‘principles upon which mandatory and pr ohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied.’” (6 Witkin, Cal. Proc edure (5th ed. 2008) Provisional Remedies, § 280, p. 222.) In “a clear case of prospective inju ry,” a court may properly grant a mandatory preliminary injunction. ( Alvarez v. Eden Town ship Hospital Dist. (1961) 191 Cal.App.2d 309, 312) Indeed, in such a case , an injunction may be necessary to prevent an irreparable altering of the status quo. In F.T.C. v. Affordable Media , LLC (9th Cir. 1999) 179 F.3d 1228, the lowe r court issued a mandatory pr eliminary injunction against two defendants, requiring them “t o repatriate any assets held for their benefit outside of the United States.” ( Id. at p. 1232.) The two defendants, along with AsiaCiti Trust Limited, 5 were cotrustees of an irrevocable tr ust formed under the laws of the Cook Islands. ( Ibid. ) The Ninth Circuit held “the district court did not abus e its discretion in issuing the prelimin ary injunction.” ( Id. at p. 1238) F.T.C. describes at length the use of

5 AsiaCiti Trust Limited is, coincident ally, the parent company of AsiaTrust, the trustee of the New Zealand Trust here. ( Gilmore Bank v. AsiaTrust New Zealand LTD. , supra , 223 Cal.App.4th at p. 1564.)11 “‘[s]o-called asset protection trusts . . . to shield wealth by mo ving it to a foreign jurisdiction that does not recogn ize U.S. judgments or other legal processes, such as asset freezes’” in order “to frustrate and impede th e United States courts by moving their assets beyond those courts’ jurisdictions.” ( Id . at p. 1240.) As noted, plaintiffs’ motion for a preliminary injunction sought to restore the status quo back to the playing field that existed when they filed their fraudulent transfer lawsuit (before defendant s sequestered assets overseas).

The Court Did Not Abuse Its Discretion by Finding Plaintiffs Were Likely to Prevail on the Merits Defendants argue “that the transfers of assets into the [New Zealand] Trust and the Swiss Annuity were made in connection with [Cindy’s] establis hment of a private retirement plan, rendering these assets ex empt from procedures to enforce money judgments” under the exemption established by se ction 704.115. Plai ntiffs contend that

defendants made the transfers wi th an intent to defraud thei r creditors and not for Cindy’s retirement purposes. “A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the in tent to prevent a creditor fro m reaching that interest to satisfy its claim. However, a conveyance will not be considered fraudulent if the debtor merely transfers property which is otherwise exempt from liability for debts. That is, because the theory of the law is that it is fraudulent for a judgment debtor to divest himself of assets against wh ich the creditor could execute, if execution by the creditor would be barred while the property is in th e possession of the debtor, then the debtor’s conveyance of that exempt property to a third person is not fraudulent.” ( Yaesu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13 ( Yaesu ).) Section 703.010 et seq. governs pr operty statutorily exempted from a judgment creditor’s enforc ement of a money judgment. Defendants rely on the12 exemption established by secti on 704.115 for “[p]rivate retir ement plans, including, but not limited to, union retirement plans.” (§ 704.115, sub. (a)(1).) The purpose of the section 704.115 “exemption is to safeguard a s ource of income for retirees at the expense of creditors.” ( Yaesu , supra , 28 Cal.App.4th at p. 13.) Stated another way, the exemption’s purpose “is to permit a judgment debtor to place funds beyond the reach of creditors, so long as they qualify for the exemption under the law, and there was no

evidence the debtor used the acco unt to hide assets.” (8 W itkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 204, pp. 235-236.) “However, neither the debtor’s mere compliance with the pertinent IRS rules in creating the private retirement plan no r the debtor’s designation of the asset as a private retirement plan tran slates to an automatic ex emption from execution.” ( Yaesu , supra , 28 Cal.App.4th at p. 13.) Rather, the fundamental inquiry is, considering all relevant factors, Was “the plan . . . desi gned and used for a retirement” purpose? ( Id. at p. 14.) This is a factual inquiry, and a tria l court’s finding on the question is “insulated from attack on appeal” if supporte d by substantial evidence. ( Ibid ; see also Schwartzman v. Wilshinsky , supra , 50 Cal.App.4th at p. 626 [wheth er IRA was necessary to support judgment debtor and his dependents upon retir ement “presented a factual issue to the trial court, upon which [judgment debtor] had the burden of proof”]; compare id . at pp. 622, 628, 629, fn. 7 [where facts were undisputed, it was a que stion of law whether 401K profit-sharing plan (established by judgment de btor’s employer and administered by other employees) was exempt un der section 704.115].) Here, we need not belabor our review of the court’s implied finding that Cindy did not design and use her plan (and the various trusts, LLCs, and property transfers thereunder) for retirement purpos es. Because defendants’ opening brief included only evidence favorable to their cause, rather than all “significant facts” as required under California Rules of Cour t, rule 8.204(a)(2)(C) (see also Filip v.

Bucurenciu (2005) 129 Cal.App.4th 825, 833 ( Filip ) [“defendants present a skewed view13 of the facts”]), they have wa ived their contention that insu fficient evidence supports the court’s finding ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738). 6

Furthermore, abundant substantial ev idence supports the court’s finding. This evidence includes the timing of defendants ’ creation of the “retirement plan” relative

to the arbitration and cour t proceedings and rulings ( Yaesu , supra , 28 Cal.App.4th at p. 14); the absence of tax benefits afforded by the plan; the appointment of Cindy’s young niece as trustee and manager of the entities; Ci ndy’s retention of control over the assets after transferring them; the movement of all of Cindy’s liquid assets overseas; Norman’s recognition of a need for a liability reserve but failure to provide for one; Cindy’s abandonment of her prior retirement goal of buying a condo on a cruise ship; and the use

of substantial funds to pay legal fees ( In re Phillips (Bankr. N.D.Cal. 1997) 206 B.R. 196,

6 Defendants support the factual reci tation in their opening brief almost exclusively with declarations by Cindy, Sonia, and Norman in the re cord. As an example of defendants’ biased briefing, their version of the arbitration proceeding is, essentially, as follows: “Before the arbitration commenc ed, Ms. Dalrymple reasonably believed that she would prevail in the arb itration because: (1) she ha d provided Mr. Cho with all available information concerning [ATI]; (2) Mr. Cho had conducted a thorough and diligent investigation of all relevant factor s prior to acquiring [ATI]; and (3) [Cindy] knew the allegations in the arb itration demand to be utterly false.” “At the conclusion of the arbitration, Ms. Dalrymple remained confident that she would prevail in the arbitration, believing that Mr. Cho’s credib ility had been totally de stroyed.” Yet, the interim arbitration award noted that Cind y’s testimony at the hearing had conflicted significantly with the testimony of other w itnesses and even with her own deposition testimony. In their factual recitati on, defendants make much of the court’s denial of plaintiffs’ April 7, 2011 application for a writ of attachment against defendants. But the court’s order stated that, “upon further s howing, [the court] may also consider a [temporary restraining order] regarding the a ssets in question.” In May and June of 2012, plaintiffs discovered the new evidence that defendants had moved all of Cindy’s liquid assets offshore. Thus, the court’s prio r denial of plaintiffs’ writ application is entirely consistent with its later gr anting of a prelim inary injunction.14 203 [expenditure of funds for legal defense of judgment debtors was inconsistent with utilization for retirement purposes]). In sum, substantial evidence supports the court’s implied finding Cindy’s “retirement plan” does not qualify for the s ection 704.115 exemption. Consequently, the

assets in the New Zealand Trust and the Sw iss Annuity are not exempt from plaintiffs’ enforcement of their judgment against defendants.

We must still consider whether the c ourt abused its discretion by impliedly finding that plaintiffs are likely to prevail at trial on their fraudulent transfer claim against

defendants. “The Uniform Frau dulent Transfer Act . . . , codi fied in Civil Code section 3439 et seq., ‘permits defrauded creditors to reach property in the hands of a transferee.’” ( Filip , supra , 129 Cal.App.4th at p. 829.) Under Civil Code section 3439.04, subdivision (a)(1), a transfer made by a debtor is fraudulen t as to a creditor, if the debtor made the transfer with “actual intent to hinder, delay, or defraud any creditor of the debtor.” “Whether a conveyance was made with fraudulent intent is a question of fact, and proof

often consists of inferences from the circ umstances surrounding the transfer.” ( Filip , at p. 834.) Civil Code section 3439.04, subdiv ision (b), contains a non-exclusive list of factors which may be considered in discerning a debtor’s actual intent. These factors, known as “the ‘badges of fraud’” ( Filip , at p. 834), include “(1) Whether the

transfer . . . was to an inside r. [¶] (2) Whether the debtor retained possession or control of the property transferred after the transfe r. [¶] (3) Whether the transfer . . . was disclosed or concealed. [¶] (4) Whether before the transfer was made . . . , the debtor

had been sued or threatened wi th suit. [¶] (5) Whether the transfer was of substantially all the debtor’s assets.” (Civ. Code, § 3439.0 4, subd. (b)). “There is no minimum number of factors that must be present before the scales tip in favor of finding of actual intent to defraud.” ( Filip , at p. 834.) The “confluence of se veral [badges of fraud] can constitute

conclusive evidence of actual intent to defraud , absent ‘significantly clear’ evidence of a legitimate supervening purpose.” ( In re Acequia, Inc. (9th Cir. 1994) 34 F.3d 800, 806.)15 We need not belabor our review of the court’s implied finding that defendants intended to defraud pl aintiffs. Defendants have waived their challenge to the sufficiency of the evid ence to support this finding by fa iling to summarize all significant facts in their opening brief. 7 Furthermore, the same eviden ce that supports the court’s finding that Cindy’s “retirement plan” was not designed or used for retirement purposes

anchors the court’s conclusion that defendants tr ansferred assets with an intent to defraud plaintiffs.

The Court Did Not Abuse Its Discretion by Fi nding that Pl aintiffs Bore the Greater Risk of Suffering Interim Harm

The court did not abuse its discretion by impliedly finding that plaintiffs were likely to sustain greater interim harm if the injunction were denied, than the harm defendants were likely to su ffer if the injunction issued. 8 “[T]he more likely it is that plaintiffs will ultimately prevail, the less seve re must be the harm that they allege will occur if the injuncti on does not issue.” ( King v. Meese (1987) 43 Cal.3d 1217, 1227.)

7 Instead of discussing the badges of fraud in their appellate briefs, defendants stress that any fraudulent intent is irrelevant if Cindy’s retirement plan is exempt under section 704.115.

8 A related question is whether “failure to provide interim relief will cause irreparable harm.” ( Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1813.) The term “‘irreparable injury’” “m eans that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other.” ( Anderson v. Souza (1952) 38 Cal.2d 825, 834.) Such injury can consist of the dissipation of assets, the making of disbursements which cannot be adequately traced ( Wind v. Herbert , supra , 186 Cal.App.2d at p. 285), or the disposal of property which “would render the final judgment ineffectual” ( Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 136.)16 Defendants bear the burden of clearly showing an abuse of discretion. Yet, for purposes of comparing the parties’ respective risks of suffering interim harm,

defendants fail to articulate wh at harm they will suffer if fo rced to return the overseas

assets to the United States. In contrast, plaintiffs argue that defendants’ confinement overseas of $3 million — i.e., all of Cindy’s and her entities’ liquid assets — “further sequester[s] assets beyond the jurisdiction of th e Court, thereby leaving [p laintiffs] with an ‘empty judgment’ that cannot be collect ed.” As stated by plaint iffs, “based on [defendants’] actions since the arbitration proceeding was firs t instituted, it is clear that they go to any lengths to keep [Cindy’s] assets beyond [plaintiffs’] reach . . . .” In a recently published opinion, we held that the trial court had pers onal jurisdiction over AsiaTrust, the trustee of the New Zealand Trust, wh ich had moved to quash servi ce of summons for lack of personal jurisdiction. ( Gilmore Bank v. AsiaTrust New Zealand LTD. , supra , 223 Cal.App.4th at p. 1576.) Obviously, plainti ffs would suffer severe interim harm if

defendants or their instrumentalities were to further transfer and conceal the overseas

assets in order to evade California’ s jurisdiction and plaintiffs’ reach.

The court did not abuse its discreti on by granting the pre liminary injunction requiring defendants to repatriate the assets in question, which in clude the $2.2 million plaintiffs paid Cindy for her now defunct company.17 DISPOSITION

We affirm the court’s order grantin g plaintiffs’ motion for a preliminary injunction. Plaintiffs are en titled to their costs on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.