Case Name: Nguyen v. Nguyen

Case No.: 19CV345300

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

According to the allegations of the complaint:

This is an action brought by Plaintiff Tuyet Nguyen (“Plaintiff” or “Tuyet”) to establish her rights, title, and/or interest in Lottery winnings of $750,000 arising from a scratcher ticket that Defendant Binh Nguyen (“Defendant”) gifted her, and then upon finding out it was a winning ticket, took and converted it, and then claimed before the state lottery that it was his alone.

(Complaint, ¶ 1.)

On March 28, 2019, Plaintiff filed a complaint against Defendant, asserting causes of action for:

1) Quiet title;
2)
3) Fraud;
4)
5) Negligent misrepresentation;
6)
7) Estoppel;
8)
9) Injunctive relief;
10)
11) Conversion; and,
12)
13) Constructive trust.
14)

Defendant moves for summary judgment on the complaint.

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.)

Defendant meets his initial burden; however, there is a triable issue of material fact as to whether Plaintiff is not the owner of the winning lottery ticket

Defendant argues that the complaint lacks merit because Plaintiff cannot establish that she was gifted the ticket. In support of his argument, Defendant provides testimony of Thy Vo, the person who scratched off the winning lottery ticket, and wrote down Plaintiff’s name on that ticket, that: Defendant handed her the ticket to scratch off those numbers; Plaintiff did not touch that ticket; neither Defendant nor anyone else asked or gave permission to her to write Plaintiff’s name on the ticket; Defendant had the winning ticket in his hands; Defendant left with the winning ticket; and, Plaintiff did not ask Defendant for the winning ticket. (See Barber decl. in support of motion for summary judgment, exh. 1, pp.8:28, 9:1-11, 13:6-24, 25:8-20, 26:10-19, 31:3-28, 32:1-28, 33:1-1-28.) Defendant also provides Plaintiff’s testimony at the preliminary injunction hearing where she states that: she saw Defendant purchase the lottery tickets; she did not pay for the winning ticket; Defendant told Plaintiff that he would give her a single ticket; Defendant gave Plaintiff a ticket which was not a winner, took it back, and then put a second ticket on the table that Vo scratched and that was a winner; Plaintiff did not ask Vo to write her name on the winning ticket; Plaintiff saw Defendant take the winning ticket away; Plaintiff neither asked for nor received a claim ticket or a receipt for the winning ticket; and, Plaintiff made a claim two days after the ticket was a winner, was interviewed by the California Lottery, and was denied that claim by California Lottery. (See Barber decl. in support of motion for summary judgment, exh. 1, pp.57:6-28, 58:1-28, 59:1-19, 60:11-13, 61:12-16, 63:7-28, 64:1-19.) Defendant also provides his testimony at the preliminary injunction hearing in which he states that he told Vo that he could scratch the winning ticket for him; he bought four lottery tickets that day; the first ticket that he handed to Plaintiff was not a winning ticket; the second ticket that was scratched off was the winning ticket; Vo scratched off all the numbers and Plaintiff did not touch the winning ticket; he did not intend to gift the winning ticket to Plaintiff; he did not tell Vo to put Plaintiff’s name on the winning ticket; Plaintiff did not tell him to give her the winning ticket; the cashier gave Defendant a claim receipt; he presented the claim receipt to the California Lottery to claim the prize; California Lottery has told him that he is the owner of the winning ticket; Plaintiff never touched the winning lottery ticket; and, Defendant has had the claim receipt in his possession at all times other than the California Lottery claims person received the claim receipt to make a photocopy. (See Barber decl. in support of motion for summary judgment, exh. 2.) Defendant also presents his deposition testimony in which he states that his children know that he’s won the lottery. (See Barber decl. in support of motion for summary judgment, exh. 3.) Defendant meets his initial burden to demonstrate that Plaintiff is not the owner of the winning lottery ticket, and that the complaint thus lacks merit against him.

However, Plaintiff presents her own declaration in which she states that she told Defendant that if he wanted to use his money for her, he could buy Plaintiff a lottery ticket as a gift for her, and that he stated that he would do so, and Defendant gifted her the ticket, but left the deli with her ticket. (See Pl.’s decl. in opposition to motion for summary judgment, ¶¶ 52-54, 64-87.) Additionally, it is undisputed that Plaintiff’s name is on the ticket. There is a triable issue of material fact as to whether Plaintiff is the owner of the winning lottery ticket by gift.

Defendant also argues that the California Lottery Retailer policy states that a “General Retailer Responsibility” is that “Retailers must pay for Lottery products in full prior to play if they choose to play Lottery games.” Further, the California Lottery Retailer Code of Conduct states that “[i]n support of the California Lottery’s commitment to ensuring integrity, honesty, and fairness in its operations, Lottery Retailers agree that they and their employees, agents, and representatives will… [f]ully pay for Lottery tickets and products before playing Lottery games.” Without citing any authority, Defendant asserts that “[i]t is the clear intent of the California Lottery that Retailer employees must pay in full for lottery products in order to play them… [to] prevent the very mischief being perpetrated by Plaintiff: a verbal, unsupported claim that a paying customer of the Retailer ‘gave’ the employee a gift of what turned out to be a large prize-winning lottery ticket.” (See Def.’s memorandum of points and authorities in support of motion for summary judgment (“Def.’s memo”), p.6:4-26.) However, it is not clear that Defendant’s proffered position is, in fact, the intent of that provision of the California Lottery Retailer policy and code of conduct. In fact, the California Lottery Retailer policy explicitly states that the “policies are designed to ensure that the Lottery and its Retailers enjoy a high degree of success while maximizing supplemental revenues provide to California public education.” (Def.’s request for judicial notice, exh. B.) Such a policy does not appear to address a situation where a customer fully pays a retailer for a lottery product and then gifts that lottery product to a retailer employee. Defendant presents evidence that, and it is undisputed that, the lottery product has been paid in full prior to Vo scratching off the ticket, thereby playing the Lottery game. Defendant’s unsupported argument regarding the California Lottery Retailer policy and the California Lottery Retailer Code of Conduct is without merit.

Defendant’s arguments regarding ownership are the lone arguments as to the first cause of action for quiet title and the sixth cause of action for conversion. (See Def.’s memo, pp.7:2-5, 8:22-28.) Defendant’s notice of motion and caption states that the motion is a motion for summary judgment. As there are triable issues of material fact as to the first and sixth causes of action, Defendant’s motion for summary judgment is DENIED.

The Court shall prepare the Order.

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