Case Name: Nguyen, et al. v. Pham, et al.
Case No.: 2016-1-CV-294253

This is an action for breach of an agreement to sell property, to set aside a fraudulent transfer and for quiet title. According to the allegations of the first amended complaint (“FAC”), on September 17, 2010, plaintiffs Tran Huyen Thi Nguyen and Thao Thi Nguyen (collectively, “Plaintiffs”) entered into a contract with defendants Giang To Pham and Victoria Buu Pham (collectively, “the Phams”) to purchase a house at 4172 West Rincon Avenue in Campbell for $700,000. (See FAC, ¶¶ 7-10.) Plaintiffs paid the Phams $240,000, and agreed to assume the responsibility for making the mortgage payments to pay off the balance of the mortgage of $460,000 within five years. (See FAC, ¶¶ 11-5.) On September 17, 2010, Plaintiffs moved into the subject property pursuant to the terms of the contract. (See FAC, ¶ 16.) Despite the fact that Plaintiffs continued to make payments pursuant to the contract, on May 26, 2015, the Phams transferred the subject property to their friend defendant Angie Elconin (“Elconin”) without knowledge, consent or approval by Plaintiffs. (See FAC, ¶ 26.) Plaintiffs were ready, willing and able to pay off the remainder of the balance—and had actually on multiple occasions had offered to make payments, but the Phams refused to accept those payments. (See FAC, ¶ 34.) On January 3, 2017, Plaintiffs filed the FAC, asserting causes of action against defendants the Phams and Elconin (collectively, “Defendants”) for:

1) Breach of contract (against the Phams);
2) Anticipatory breach of contract (against the Phams);
3) Breach of the covenant of good faith and fair dealing (against the Phams);
4) Specific performance (against the Phams);
5) Fraud and misrepresentation (against the Phams);
6) Set aside fraudulent transfer of real property (against the Phams);
7) Civil conspiracy (against all defendants);
8) Constructive trust (against all defendants);
9) Quiet title (against all defendants); and,
10) Money had and received (against the Phams).

On January 22, 2018, Victoria Pham filed a cross-complaint against Trang Nguyen, asserting causes of action for:

1) Breach of implied contract;
2) Common counts;
3) Declaratory relief; and,
4) Unjust enrichment.

Elconin moves for summary judgment, or, in the alternative, for summary adjudication.

DEFENDANT ELCONIN’S MOTION FOR SUMMARY JUDGMENT

Defendant’s burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Elconin’s notice of motion as to her motion for summary adjudication is deficient

Elconin’s notice of motion does not indicate what she seeks to summarily adjudicate. The notice of motion does indicate that she is seeking summary adjudication because the undisputable facts establish that there is “NO CLEAR AND EVIDENING EVIDENCE [sic] to rebut that Ms. Elconin is the owner of the subject premises” and the “undisputable facts establish that Ms. Elconin is BFP.” A motion for summary adjudication may be directed to causes of action, affirmative defenses, claims for damages and issues of duty. (See Code Civ. Proc. § 437c, subd. (f)(1).) Elconin has not identified any causes of action, affirmative defenses, or claims for damages in her notice of motion. To the extent that she is seeking to summarily adjudicate the listed issues, they are also not issues of duty, and Elconin has not filed a joint stipulation or a declaration seeking the adjudication of issues pursuant to subdivision (t). Accordingly, Elconin’s notice of her alternative motion for summary adjudication is deficient and is therefore DENIED.

There is a triable issue as to whether defendant Elconin is a BFP.

Elconin asserts that she is the owner of the property and that there is no evidence to the contrary because she is a bona fide purchaser for value (BFP) of the property. For the most part, the facts are not disputed. Elconin is not related to the Phams. (See evidence cited by Def.’s separate statement in support of motion for summary judgment, undisputed facts number (“UMF”) 3.) Elconin is, however, good friends with the Phams, and is a successful investor in residential real estate, flipping numerous properties. (See UMF 2.) Elconin contends that the Phams have not told her about the agreement to sell the property to Plaintiffs, and her review of the title report on the subject property did not indicate any such agreement. (See UMFs 5, 12, 19.)

There is, however a triable issue as to whether Elconin inspected the property prior to purchase, or, knew that Plaintiffs were in actual possession of the property prior to the purchase of the property. Elconin presents her own declaration and discovery responses indicating that she did an inspection of the house. However, Plaintiffs present Elconin’s deposition testimony in which Elconin stated that the Phams “told me currently there is someone living in it… [and that] when we went into contract… [she] kn[e]w there was a tenant occupy[ing] the home.” (Elconin depo, p.30:16-23.) Additionally, Elconin stated at her deposition that “I did not… inspect the house since May 2015… [and] didn’t question who lives at the house since May 2015….” (Elconin depo, p.55:15-20.) Plaintiffs also present evidence that they changed the locks in 2014 and had a burglar alarm installed so that no one could enter the property without their knowledge, and thus rendering it impossible for Elconin to inspect the property. (See Trang Huyen Thi Nguyen decl. in opposition to Def.’s motion for summary judgment, ¶¶ 13-14.)

In Asisten v. Underwood (1960) 183 Cal.App.2d 304, a defendant purchased property from a party for $6,000, unaware that the seller of the property had acquired the property through fraud. (Id. at pp.306-308.) This defendant was not related to the seller, but was previously acquainted with the seller and his family. (Id. at p.307.) This defendant did not inspect the premises on the inside, although he did inspect the premises from the outside. (Id.) This defendant did not inquire as to the seller’s interest in the property, although a different party—the plaintiff—continuously resided in the premises after the purchase. (Id.) The defendant argued that he was a BFP as he was unaware of the fraud by the sellers. (Id. at p.309.) However, the Asisten court stated “appellants’ argument overlooks the fact that plaintiff was in actual possession of the property after the date of his quitclaim deed to Underwood. It is a general rule that possession of real property is constructive notice to any intending purchaser or encumbrancer of the property of all the rights and claims of the person in possession which would be disclosed by inquiry.” (Id.) “When a party is aware of facts that would make a reasonably prudent person suspicious he is deemed to be compelled to inquire further.” (Id. at p.311.) Usually the question of whether one is an innocent purchaser for value without notice is for the trier of facts to decide.” (Id.) Here, it is clear that there is a triable issue as to whether Elconin is a BFP. Accordingly, the motion for summary judgment is DENIED.

Elconin’s objections are not in compliance with Rule of Court 3.1354, subdivisions (b) and (c) and are thus OVERRULED.

The Court did not consider the additional arguments or evidence made in reply.

In reply, Elconin presents additional evidence. This evidence has not been considered. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (stating that evidence submitted with a reply is not generally allowed); San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 (stating that considering evidence in connection with a reply violated the opposing parties due process rights because the opposing party was “not informed what issues it was to meet in order to oppose the motion”).) Elconin also makes a number of arguments made for the first time in reply. These arguments also will not be addressed as considering these arguments would likewise violate Plaintiffs’ due process rights.

The Court shall prepare the Order.