Case Name: Hai Dinh Nguyen v. Meridian Financial Services, Inc., et al.

Case No.: 17CV313421

(1) [Plaintiff’s] Motion for Summary Judgment, or Alternatively, Summary Adjudication
(2) [Defendants] Mark Yazdani and Meridian Financial Services, Inc.’s Motion for Summary Judgment or, in the Alternative Summary Adjudication

Factual and Procedural Background

Plaintiff Hai Dinh Nguyen (“Nguyen”) is the sole legal owner of his personal residence located at 3969 Mars Court in San Jose (“Subject Property”). (First Amended Complaint (“FAC”), ¶1.)

Defendant Meridian Financial Services, Inc. (“Meridian”) and its sole owner, defendant Mark Yazdani (“Yazdani”), invested in a fraudulent scheme perpetrated, in part, by plaintiff Nguyen’s wife, Lan Anh Phan (“Phan”). (FAC, ¶¶2 – 3, 7, and 9.) In or about April 2012, Phan provided Yazdani/Meridian with a $500,000 promissory note and deed of trust encumbering the Subject Property. (FAC, ¶9(C) and Exh. A.) However, Plaintiff Nguyen’s signatures on the promissory note and deed of trust were fraudulent. (FAC, ¶7.) When interviewed by the Santa Clara County District Attorney’s Office on March 25, 2014, Yazdani stated that he had learned that Phan was not on title to the Subject Property and plaintiff Nguyen’s signature was forged. (FAC, ¶13.)

Phan’s investment scheme also ensnared property belonging to Phan’s sister-in-law, Huyen Bich Nguyen (plaintiff Nguyen’s sister; hereafter, “Huyen”), and brother-in-law, Vincent Chi Le (“Vincent”), located in Orange County prompting a lawsuit (“Orange County Action”) which resulted in a judgment quieting title in favor of Vincent and Huyen against the defendants in that action including Phan, Nguyen, Meridian, and Yazdani. (FAC, ¶7 and Exh. B.)

Despite knowing the promissory note and deed of trust against the Subject Property were forged, defendants Meridian/Yazdani started a foreclosure action against the Subject Property. (FAC, ¶¶8 and 11.) Meridian/Yazdani have commenced a lawsuit against, among others, Phan and the notary (Diane H. Do aka Diane H. Do Bui; hereafter, “Do”) on the deed of trust bearing plaintiff Nguyen’s forged signature alleging Phan and Do engaged in a “Ponzi” scheme. In the lawsuit, Meridian/ Yazdani allege, in part, that “Meridian appears not to have the security it was led to believe it had.” (FAC, ¶14.) Plaintiff Nguyen, through counsel, sent a letter to defendant WT Capital Lender Services, Inc. (“WT”) requesting the foreclosure sale be canceled. (FAC, ¶12 and Exh. D.)

On July 24, 2017, plaintiff Nguyen filed a complaint against defendants Meridian and Yazdani and immediately thereafter sought and obtained a temporary restraining order prohibiting the sale of the Subject Property. On August 24, 2017, the court issued a preliminary injunction prohibiting a sale of the Subject Property during the pendency of this litigation.

On September 11, 2017, plaintiff Nguyen filed a FAC which asserts causes of action for:

(1) Injunctive Relief
(2) Declaratory Relief
(3) Fraud
(4) Quiet Title
(5) Slander of Title

On October 5, 2017, defendants Meridian and Yazdani filed a joint answer to the FAC.

On February 9, 2018, plaintiff Nguyen dismissed defendant WT without prejudice.

On June 11, 2018, plaintiff Nguyen filed, pursuant to stipulation, a First Amendment to FAC which added a sixth cause of action for cancellation of written instrument.

On September 5, 2018, defendants Meridian and Yazdani filed an answer to the First Amendment to FAC.

On March 5, 2019, plaintiff Nguyen filed one of the two motions now before the court, a motion for summary judgment/ adjudication.

On March 6, 2019, defendants Meridian and Yazdani filed the second motion now before this court, a motion for summary judgment/ adjudication.

I. Plaintiff Nguyen’s motion for summary judgment, or alternatively, summary adjudication is DENIED.

A. Plaintiff Nguyen’s request for judicial notice is DENIED.

In support of his motion for summary judgment/ adjudication, plaintiff Nguyen requests judicial notice of various court records and documents. However, California Rules of Court, rule 3.1306, subdivision (c) states, “A party requesting judicial notice of material under Evidence Code section 452 or 453 must provide the court and each party with a copy of the material.” Plaintiff Nguyen’s request for judicial notice fails to comply with this rule and is, for that reason, DENIED.

In his separate statement, plaintiff Nguyen also asks this court to incorporate by reference pleadings filed in Santa Clara County Superior Court, case number 113CV254980. The court views this as an improper request for judicial notice. Not only does this request violate California Rules of Court, rule 3.1306, subdivision (c) mentioned above, plaintiff Nguyen’s request also violates California Rules of Court, rule 3.1113, subdivision (l) which states, “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” For these reasons, plaintiff Nguyen’s request that the court incorporate by reference pleadings from case number 113CV254980 is DENIED.

B. Pleading.

Plaintiff Nguyen asserts six causes of action. Plaintiff’s first cause of action is for injunctive relief. “Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Dept. of Transportation (1994) 29 Cal.App.4th 1280, 1293.) “To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law.” (Id. at p. 1293; see also 5 Witkin, California Procedure (4th ed. 1997) Pleading, §779, p. 236.) “Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” (Shell Oil v. Richter (1942) 52 Cal.App.2d 164, 168.)

Plaintiff Nguyen’s second cause of action is for declaratory relief. “A complaint for declaratory relief should show the following: (a) A proper subject of declaratory relief within the scope of C.C.P. 1060; (b) An actual controversy involving justiciable questions relating to the rights or obligations of a party.” (5 Witkin, California Procedure (4th ed. 1997) §809, pp. 264 – 265; emphasis omitted.) Specifically, plaintiff Nguyen seeks a judicial declaration, “That no loan was made to Plaintiff that is purportedly reflected in the Note and Deed of Trust; That the signature on the Note and Deed of Trust are forgeries and have no legal force or effect as to anyone in terms of the subject matter thereof, including Plaintiff, such that the related liens and foreclosure against the Property have no legal force or effect and must be withdrawn from record title thereto; That the signature on the Note and Deed of Trust are forgeries, cannot constitute a legal basis for foreclosure proceedings, and must be withdrawn from record title against the Property.” (FAC, p. 14, lines 7 – 18.)

Plaintiff’s third cause of action alleges fraud. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).)

Plaintiff’s fourth cause of action is for quiet title. “The elements of a quiet title action include all of the following: [1] A description of the property that is the subject of the action; [2] The title of the plaintiff as to which a determination is sought and the basis of the title; [3] The adverse claims to the title of the plaintiff against which a determination is sought; [4] The date as of which the determination is sought; [5] A prayer for the determination of the title of the plaintiff against the adverse claims.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §622, pp. 87 citing Code Civ. Proc. §761.020.)

Plaintiff’s fifth cause of action is for slander of title. “Disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes pecuniary loss. The elements of the tort are (1) publication, (2) absence of justification, (3) falsity, and (4) direct pecuniary loss.” (Truck Insurance Exchange v. Bennett (1997) 53 Cal.App.4th 75, 84.) The esteemed commentators, Miller and Starr, state the cause of action a bit differently. “To recover damages for slander of title to real property, the plaintiff must prove six requisite elements: [1] There must have been a direct or indirect disparagement of the owner’s title. [2] The disparaging statement must have been published. [3] The matter published must be untrue. [4] When the statement was published it must not have been privileged and without justification. [5] The statement must have been made with malice. [6] Such published matter must be the proximate cause of pecuniary loss or damage to the owner of the interest.” (5 Miller & Starr, California Real Estate (3rd ed. 2000) Recording and Priorities, §11:40, p. 111.)

Finally, plaintiff’s sixth cause of action seeks cancellation of the promissory note and deed of trust encumbering the Subject Property. “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” (Civ. Code, §3412.) “This action under Civil Code §3412 is sometimes called an action “to remove a cloud,” and is based on the equitable bill quia timet.” (3 Witkin, California Procedure (4th ed. 1996) Actions, §123(4), p. 189 – 190; see also 12 Miller & Starr, California Real Estate (3rd ed. 2001) Remedies, §§34:113 – 34:114, pp. 384 – 388; see also Robertson v. Superior Court (2001) 90 Cal.App.4th 1319.)

The action to remove a cloud is based on the same kind of invasion of substantive right (an adverse claim against the title) as the statutory action to quiet title. But the two actions differ in the relief sought: In the former case the proceeding is aimed at a particular instrument, or piece of evidence, which is dangerous to the plaintiff’s rights, and which may be ordered to be destroyed in whosesoever hands it may happen to be. While in the latter, the proceeding is for the purpose of stopping the mouth of a person who has asserted or is asserting a claim to the plaintiff’s property, whether such claim be founded upon evidence or utterly baseless.

(5 Witkin, California Procedure (4th ed. 1997) Pleading, §630, p. 94 – 95.)

“The action to remove a cloud under Civil Code 3412 is narrower in scope than a quiet title suit: It is directed at a particular instrument or piece of evidence constituting the cloud and seeks its cancellation.” (Id. at §614(f), p. 80.)

The necessary elements therefore, are:
• A description of the property that is the subject of the action;
• The title of the plaintiff as to which a determination is sought and the basis of the title;
• Facts concerning the particular instrument and its apparent validity;
• Facts showing actual invalidity of the apparently valid instrument must be specifically pleaded.

(5 Witkin, California Procedure (4th ed. 1997) Pleading, §622, 631 – 633, pp. 87, 95 – 96.)

C. Merits.

“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).) As plaintiff Nguyen recognizes, “For purposes of motions for summary judgment and summary adjudication: A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., §437c, subd. (p)(1).)

Rather than addressing each of the various elements of his causes of action, plaintiff Nguyen instead places considerable reliance on the statement of decision issued in the Orange County Action by the Honorable David T. McEachen, a copy of which is attached as Exhibit B to plaintiff Nguyen’s FAC. Plaintiff Nguyen contends the doctrine of collateral estoppel applies to preclude defendants Meridian and Yazdani from disputing the finding made in that statement of decision that defendants Meridian and Yazdani acted with unclean hands. In relevant part, the statement of decision states:

Here, Meridian/Yazdani’s unclean hands in procuring the trust deed and other loan documents mandate that the trust deed be cancelled. Meridian took affirmative steps to prevent Plaintiffs from having notice of the purported loans/trust deeds. Rather than having the loan documents sent to the borrowers, Meridian had the documents sent to Yazdani. Yazdani had the mailing address and principal residence of the Plaintiffs and the other purported borrowers listed as Phan’s home even though he knew the house did not hold eight couples and with knowledge from Phan that the purported borrowers lived in Southern California.

(FAC, Exh. B, p. 12, lines 15 – 23.)

“Collateral estoppel is a doctrine which prevents relitigation of issues previously argued and resolved in a prior proceeding. [Citation.] In order to apply this principle: (1) the issue must be identical to that decided in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) the issue must have been necessarily decided in the prior proceeding; (4) the decision must have been final and on the merits; and (5) preclusion must be sought against a person who was a party or in privity with a party to the prior proceeding. [Citation.]” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233 (Alvarez).) “In deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.” (Alvarez, supra, 143 Cal.App.4th at p. 1233.)

“The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511–512.) Without any comparison of the factual allegations at issue in the Orange County Action and the present action, plaintiff Nguyen asserts the issue of defendants Meridian and Yazdani’s unclean hands with regard to the note and deed of trust in the Orange County Action is identical to the issue of defendants’ unclean hands in the present case. While the Orange County Action involved similar issues, the facts appear to be specific to that case. The court in the Orange County Action found Meridian and Yazdani engaged in misconduct in procuring a trust deed against property owned by Vincent and Huyen. In seeking security for its investments with Phan, Meridian and Yazdani did nothing to verify a promise made by Phan that Phan’s friends and family in Southern California would put up their property as collateral. In contrast, the court in the Orange County Action noted that Yazdani did his due diligence on the Subject Property before accepting a deed of trust. This is a markedly different distinction on which the court in the Orange County Action based its finding of unclean hands.

In Unilogic v Burroughs Corp. (1992) 10 Cal.App.4th 612, 619 (Unilogic), the court stated that whether the doctrine of unclean hands will act as a bar to a claims, “depends upon the analogous case law, the nature of the misconduct, and the relationship of the misconduct to the claimed injuries.” In Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978 (Kendall-Jackson), the court addressed the doctrine of unclean hands on summary judgment recognizing that, “Whether the doctrine of unclean hands applies is a question of fact.” The Kendall-Jackson court restated a three-prong test in determining whether to apply the doctrine. “Whether the particular misconduct is a bar to the alleged claim for relief depends on (1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries.” (Id. at p. 979.)

Given the fact specific determination in applying the doctrine of unclean hands, plaintiff Nguyen has not met his initial burden of demonstrating that the finding of unclean hands against Meridian and Yazdani in the Orange County Action involves an identical issue to the facts presented here such that the doctrine of collateral estoppel would preclude relitigation in the present action.

Even if the statement of decision in the Orange County Action does not serve as collateral estoppel in this action on the issue of unclean hands, plaintiff Nguyen argues the facts in the present action independently support application of the doctrine of unclean hands against defendants Meridian and Yazdani and, consequently, summary judgment should be granted in plaintiff Nguyen’s favor. In particular, plaintiff Nguyen refers to his declaration submitted in support of this motion wherein he states that he never met Yazdani or Meridian nor was he contacted in connection with any loan application; he did not complete a loan application; he did not receive any loan documents; he never supplied Yazdani/Meridian with a signature and telephone number and never received a loan application; he never received any funds wired by Chicago Title Company to Phan’s separate account; he had no knowledge of the $500,000 investment by Yazdani/Meridian; and Yazdani/Meridian directed the $500,000 investment funds be wired directly to Phan’s separate account in her own name alone which plaintiff had no access or control.

As noted above, however, “Whether the doctrine of unclean hands applies is a question of fact.” (Kendall-Jackson, supra, 76 Cal.App.4th at p. 978.) Plaintiff Nguyen has not offered any analogous case law upon which this court could determine, as a matter of law, that the doctrine of unclean hands would apply to defendants Meridian and Yazdani in this case. More fundamentally, plaintiff Nguyen invites this court to apply unclean hands as a sword entitling him to summary judgment on his affirmative claims rather than as a shield to claims being asserted against him by defendants Yazdani or Meridian. The court does not find any legal precedent for such an application of unclean hands.

Plaintiff Nguyen makes the additional argument that the deed of trust encumbering the Subject Property is void because the deed of trust does not secure a loan. Plaintiff Nguyen again directs the court to the statement of decision in the Orange County Action where the court stated:

In addition, the deeds of trust are invalid because they are not securing a debt. Yazdani characterized the funds he paid to Phan as an investment. He expressly denied that they were a loan. A deed of trust secures an underlying debt. If there is no debt, there can be no deed of trust. And, there certainly was no debt owing by the Plaintiffs. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1235 (“A security interest cannot exist without an underlying obligation.…”); Civil Code §2909.)

(FAC, Exh. B, p. 13, lines 5 – 11.)

Procedurally, this argument does not entitle plaintiff Nguyen to summary judgment because plaintiff Nguyen’s third cause of action is for fraud and the validity of the deed of trust is not a necessary element or at issue. Although the caption of plaintiff Nguyen’s motion seeks summary adjudication, nowhere in the notice of motion has plaintiff specifically stated what causes of action or claims for damages for which summary adjudication is sought. (See Cal. Rules of Court, rule 3.1350, subd. (b)—“ If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”)

Accordingly, plaintiff Nguyen’s motion for summary judgment, or alternatively, summary adjudication is DENIED.

D. Evidentiary objections.

In opposition, defendants Meridian and Yazdani asserted objections to plaintiff Nguyen’s evidence. Defendants’ objections do not comply with California Rules of Court, rule 3.1354, subdivision (b). Specifically, defendants fail to “quote or set forth the objectionable statement or material.” In addition, defendants’ evidentiary objections do not conform to either of the two approved formats. For those reasons, the court declines to rule on defendants’ evidentiary objections.

II. Defendants Meridian and Yazdani’s motion for summary judgment is DENIED. Defendants Meridian and Yazdani’s alternative motion for summary adjudication is GRANTED.

A. Request for judicial notice.

In support of their motion for summary judgment/ adjudication, defendants Meridian and Yazdani request judicial notice of the First Amended Consolidated Felony Complaint and Case Summary, Docket No. 1489386 and 1524586, entitled People of the State of California vs. Lananh Thi Phan; Diane Do Bui; and Hai Dinh Nguyen and the records of conviction for Phan and plaintiff Nguyen. The records are proper subjects of judicial notice under Evidence Code section 452, subdivision (d) which states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

Accordingly, the request for judicial notice in support of memorandum of points and authorities in support of Mark Yazdani and Meridian Financial Services, Inc.’s motion for summary judgment or in the alternative summary adjudication of issues is GRANTED.

B. Unclean hands.

In moving for summary judgment, defendants Meridian and Yazdani argue plaintiff Nguyen’s claims are barred by the doctrine of unclean hands. Contrary to plaintiff Nguyen’s depiction of himself as the innocent victim of his wife Phan’s forgery of the deed of trust, defendants Meridian and Yazdani instead portray plaintiff Nguyen as a willing participant and beneficiary in the Ponzi scheme conducted by Phan.

Defendants Meridian and Yazdani begin by proffering evidence that plaintiff Nguyen was charged with five counts of violating Revenue and Taxation Code section 19706 and pleaded nolo contendere to one of those counts. Defendants Meridian and Yazdani contend plaintiff Nguyen’s plea serves as collateral estoppel on the issue of plaintiff Nguyen’s unclean hands. Just as the court found plaintiff Nguyen’s argument concerning collateral estoppel above to be defective, the court finds defendants Meridian and Yazdani’s argument concerning collateral estoppel to be similarly defective. Defendants cite Rusheen v. Drews (2002) 99 Cal.App.4th 279, 281 for the following proposition: “A defendant’s plea of nolo contendere to an offense punishable as a felony, regardless of whether it is ultimately so punished, is admissible as a party admission in a civil action based upon or growing out of the act upon which the criminal prosecution is based.”

Even so, there is no affirmative showing by defendants Meridian and Yazdani that plaintiff Nguyen’s admission of filing a false tax return concerns identical factual allegations at issue in the present litigation. Defendants’ own evidence is that plaintiff Nguyen pleaded no contest to Count 55 of the criminal complaint against him. Count 55 of the criminal complaint submitted by defendants states, “On or about March 14, 2010, in the County of Santa Clara, State of California, the crime of FALSE/FRAUDULENT TAX RETURN WITH INTENT TO EVADE TAX, in violation of REVENUE & TAXATION CODE SECTION 19706, a Felony, was committed by LANANH THI PHAN AND HAI DINH NGUYEN who did willfully, with the intent to evade any tax imposed, make, render, sign and verify any false of fraudulent return or statement to a California Personal Income Tax Return for the Tax Year 2009.”

Thus, on its face, Count 55 concerns the filing of a false tax return on or about March 14, 2010 for the tax year 2009, which predates the April 2012 note and deed of trust encumbering the Subject Property (and any monies given by defendants Meridian and/or Yazdani) by at least two years. Defendants have not made a sufficient showing that collateral estoppel would apply here or that plaintiff Nguyen’s claims are barred by the doctrine of unclean hands based solely on plaintiff Nguyen’s plea of no contest.

Defendants argue that even if collateral estoppel does not apply, there is enough independent evidence to apply the doctrine of unclean hands against plaintiff Nguyen and bar plaintiff Nguyen’s claims. As expressed above, one of the necessary elements for application of the doctrine of unclean hands is the nature of the misconduct. Defendants contend here that plaintiff Nguyen knew of and participated in his wife Phan’s Ponzi scheme. The critical issue is plaintiff Nguyen’s knowledge and awareness of Phan’s Ponzi scheme. However, the evidence submitted by defendants Meridian and Yazdani do not sufficiently demonstrate plaintiff Nguyen’s knowledge and awareness of Phan’s Ponzi scheme after the fact, but do not demonstrate plaintiff Nguyen’s contemporaneous knowledge and awareness at the relevant time.

Defendants Meridian and Yazdani proffer evidence that plaintiff Nguyen and his wife Phan spent money lavishly. However, none of this evidence demonstrates plaintiff Nguyen’s knowledge or awareness of a Ponzi scheme. Defendants contend plaintiff Nguyen participated in the Ponzi scheme by soliciting victims. The evidence, however, demonstrates only that plaintiff Nguyen requested to borrow funds. There is no affirmative showing that plaintiff Nguyen had knowledge or awareness of a Ponzi scheme.

Where defendants Meridian and Yazdani proffer evidence of plaintiff Nguyen’s purported knowledge, defendants Meridian and Yazdani misstate the evidence or plaintiff Nguyen has submitted a declaration stating to the contrary, thereby creating a triable issue of material fact. Defendants place particular emphasis on a spreadsheet purportedly prepared by plaintiff Nguyen during the criminal proceedings against him which summarized “Family Income” for 2012 to 2014. According to defendants, the spreadsheet concedes a portion of plaintiff Nguyen and Phan’s income for that period of time included money from defendants Meridian and Yazdani because it is denoted, “Loan on 3969 Mars Ct San Jose CA 95121; Lien; 500,000; Mark’s Loans and Liens.xls.” Defendants invite this court to infer from this spreadsheet that plaintiff Nguyen had knowledge of and participated in the Ponzi scheme with Phan because acknowledges money was borrowed from defendants and operates as a lien against the Subject Property, but the court declines to do so. Nothing on the spreadsheet indicates when the document was prepared. Defendants themselves contend the spreadsheet was prepared by Nguyen during the criminal proceedings against him. (See also Exh. 1 (p. 198, lines 2 – 5) to the Declaration of Kenneth R. Van Vleck in Support of Memorandum of Points and Authorities in Support of Mark Yazdani and Meridian Financial Services, Inc.’s Motion for Summary Judgment, etc.) If so, the evidence does not demonstrate plaintiff Nguyen’s contemporaneous knowledge, awareness, or participation in the Ponzi scheme. At best, a trier of fact may be able to draw an inference from the spreadsheet about plaintiff’s knowledge, awareness, or participation in a Ponzi schemed. “Summary judgment may be based on an inference where it is the only plausible inference that may be drawn from undisputed facts. But evidence that is equivocal or from which conflicting inferences may be drawn, is insufficient to meet the movant’s burden.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶10:185, pp 10-75 to 10-76 citing Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297.)

Accordingly, defendants Meridian and Yazdani’s motion for summary judgment is DENIED.

C. Fraud.

Alternatively, defendants Meridian and Yazdani move for summary adjudication of plaintiff Nguyen’s third cause of action for fraud. As indicated above, “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar, supra, 12 Cal.4th at p. 638.)

The allegations of fraud in plaintiff Nguyen’s FAC are somewhat vague. “Defendants’ misrepresentations of material facts through the forgeries were performed knowingly and with the intent to deceive and defraud Plaintiff because Defendants knew that their truthful disclosure of any information whatsoever related to the Note and Deed of Trust would have caused Plaintiff to set aside the fraudulent liens.” (FAC, ¶30.)

Defendants move for summary adjudication by arguing and proffering evidence that they did not make any misrepresentations to plaintiff Nguyen (as plaintiff Nguyen never met Yazdani prior to this litigation) and plaintiff Nguyen has not actually suffered any damages (plaintiff Nguyen testifying the damage referred to in the FAC is the potential loss of the Subject Property if defendants are allowed to foreclose).

In opposition, plaintiff Nguyen refers back to the statement of decision from the Orange County Action, but nothing contained therein speaks to the issue raised by defendants here, i.e., that defendants did not make any misrepresentation to plaintiff Nguyen and plaintiff Nguyen has not suffered any actual damages. Thus, plaintiff Nguyen has not presented any admissible evidence which would present a triable issue of material fact.

Accordingly, defendants Meridian and Yazdani’s alternative motion for summary adjudication of the third cause of action in plaintiff Nguyen’s FAC for fraud is GRANTED.