Bui v. Bui

Filed 9/26/07 Bui v. Bui 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed.

Wu & Cheung and Mark H. Cheung for Defendants and Appellants.

David B. Dimitruk for Plaintiff and Respondent.

Cuong M. Bui and Kim H. Phan (collectively, Cuong) appeal from a judgment in favor of Le Dung Bui (Le).[1] The judgment awarded Le a 60 percent interest in a residence owned by Cuong, provided the parties mother would be allowed to live there for life, and ordered the residence sold thereafter and the proceeds divided according to the parties interests. Cuong argues there were numerous errors. We cannot find any, and so affirm.

* * *

Le was the equitable owner of a residence in Westminster (title was held in the name of a cousin), where she provided a home for her mother.[2] In 1996, Le entered into an oral agreement to sell the property to Cuong. Cuong agreed to provide a home there for their mother for the rest of the mothers life, take over the mortgage payments and expenses, and begin to pay Le for the residence when he was able to, being at that time temporarily without funds. At Les request, the holder of legal title executed a deed to Cuong. In February 2005, Cuong served his mother with a three-day notice to quit[3] and threatened to forcibly evict her from the residence. The instant action was commenced the following month.

The complaint sets out multiple causes of action. They are denominated quiet title, partition, breach of contract, rescission, fraud, breach of fiduciary duty, breach of confidential relationship, declaratory relief, imposition of constructive trust or resulting trust, and accounting.

The matter was tried by the court. It found the oral agreement set out above, and a breach by Cuong when he served his mother with the three-day notice to quit and verbally threatened to evict her. Judgment was entered that declares, quiets title to and partitions the [r]esidence (a) in the name of Le Dung Bui, an unmarried woman, as her sole and separate property, as to a 60% undivided interest . . . and (b) in the names of Cuong M. Bui and Kim H. Phan, husband and wife, as joint tenants, as to a 40% undivided interest . . . . The judgment provides the parties are to pay the mortgage, taxes, insurance, and maintenance according to their interests. They shall continue to hold the title to the [r]esidence as set out above until Tan Nguyen (their mother) either dies, voluntarily moves out, or her physical condition requires her to move out of the residence permanently. Then, unless otherwise agreed by the parties, they shall list and sell the property for a fair market price and divide the proceeds according to their respective shares. Le was awarded attorney fees as a cost of partition, the trial court setting the fee at 60 percent of the amount requested.

I

Cuong argues the three-day notice to quit was protected by the litigation privilege (Civ. Code,  47, subd. (b)), so it cannot be a breach of the agreement. We disagree.

The point was waived when not raised below. A new theory based on unproven facts cannot be raised for the first time on appeal. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) Whether the privilege applies here is a factual question. A three day notice is a not a statement made in a judicial proceeding, but rather a prelitigation communication. A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration (Citations) (Action Apartment Association v. City of Santa Monica (Aug. 2, 2007, S129448) __Cal.4th __, ___ ; accord A. F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128.) Far from offering any evidence that he seriously considered pursuing an unlawful detainer action against his mother, Cuong denied the notice was meant for her at all, saying it was aimed at other tenants living in the home. In any event, since the privilege defense turns on unresolved fact questions, it cannot be raised for the first time on appeal.

Cuong also argues the notice was not a breach of contract because he never evicted his mother, so there was no legal harm. But that misses the point. The three-day notice, and Cuongs accompanying verbal threat of eviction, amounted to an anticipatory repudiation of the agreement (Civ. Code,  1440), which was actionable. So a breach of the agreement to provide a home for the parties mother was established.

II

Cuong contends a conveyance of real property cannot be rescinded for failure of consideration, the only remedy being damages, so it was impermissible to

award Le a 60 percent interest in the residence. He is mistaken.

The rule that a deed may not be set aside for failure of consideration (Lavely v. Nonemaker (1931) 212 Cal. 380) is not ironclad. A deed of trust has been aside for failure of consideration (Ybarra v. Solarz (1942) 56 Cal.App.2d 342, 343; Shull v. Crawford (1917) 33 Cal.App. 36), and likewise a conveyance where the consideration was a promise to support the grantor that was not fulfilled. (Lehmann v. Kamp (1969) 273 Cal.App.2d 701.) It has been suggested the concern behind the no-rescission rule is that titles would be less reliable if subject to the risk of a later challenge (3 Dobbs, Law of Remedies (2nd ed. 1993)  12.12(2) at p. 316), but if so, that risk is not inherent here. This is an action by the grantor against her immediate grantee, so the possibility of a subsequent purchasers expectations being upset is not present.

This is, in effect, a grantor support case, since part of the consideration for Les sale to Cuong was his promise to provide a home for their mother. In such circumstances, we cannot say the law prohibits the relief granted upon a finding that Cuong served his mother with a notice to quit, and verbally threatened to evict her from her home.

III

We consider together two arguments that can be disposed of quickly. Cuong contends Le is not the real party in interest and has no standing to enforce the promise of a home for her mother. He is mistaken. The trial court found the real party in interest . . . was Le Bui. Cuong never explains why the finding was wrong, nor does he cite any supporting authority, so we deem the argument waived.

Cuong also asserts the oral contract of sale was unenforceable because it did not state a price. We disagree. While an executory agreement for the sale of real property is invalid unless there is a writing, subscribed by the party to be charged, that contains the essential elements of the agreement (Civ. Code,  1624; House of Prayer v. Evangelical Assn. for India (2003) 113 Cal.App.4th 48, 53), a conveyance of title is part performance that takes the case out of the statute of frauds. (Pearsall v. Henry (1908) 153 Cal. 314; Braselton v. Vokal (1921) 53 Cal.App. 582.) So the statute of frauds is not a barrier to enforcement of the instant agreement. As for whether price is an essential term that precludes enforcement of an oral contract of sale, suffice it to say none of the authorities cited by Cuong involved that issue, so we cannot say this agreement was unenforceable.

IV

Cuong argues the evidence does not support awarding Le a 60 percent share of the residence because his accounting showed he contributed 75 percent of the expenses. But that is not our call.

The parties respective contributions toward the purchase and expenses of the house was a question of fact for the trial court. An appellate court cannot reweigh the evidence. Rather, we must accept the findings of the trial court that are supported by substantial evidence. Cuong makes no attempt to demonstrate how the evidence fails to support the division beyond saying so, and that fails to carry an appellants burden to lay out the contrary evidence and show why it is insufficient. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) The evidence supports the share awarded Le.

V

Cuongs next point is that each of the causes of action is barred by the statute of limitations, so the trial court should have granted his motion for summary judgment. This point is also wide of the mark.

The linchpin of the statute of limitations argument is that Les claim accrued in 2000 or 2001. But when a cause of action accrues is a question of fact. The trial court found the statute of limitations began to run only when Cuong served the three-day notice and threatened to evict his mother, which occurred in February 2005. Cuong does not challenge that finding, nor does he contend it is unsupported by the evidence. This action, commenced in March 2005, was timely.

It serves no purpose to lay out Cuongs claims that the causes of action for breach of contract, rescission, partition, quiet title, and declaratory relief are barred by the variously applicable limitations periods in the two to three year range. Since the action was commenced a month after it accrued, these claims were all timely. Cuong also contends the fraud claim was untimely, again on the theory it accrued in 2000-2001. But there was no finding of fraud, so we need not consider when the cause of action accrued.

One other defense must be addressed. Cuong argues that Le cannot state a claim for partition since she did not own any interest in the property. We disagree.

Generally, a partition action may be commenced by one who owns an estate of inheritance (such as a joint tenant or tenant in common), an estate for life, or an estate for years. (Code Civ. Proc.,  872.210.) But partition also lies at the behest of an equitable owner of real property. (Kolis v. Kolis (1951) 104 Cal.App.2d 86, 87.) When the trial court awarded Le a 60 percent share of the property, she became an equitable owner entitled to seek partition. There was no error in denying Cuongs motion for summary judgment.

VI

Next, Cuong asserts comments in the statement of decision indicate the trial court improperly considered facts not in evidence. While the comments certainly were injudicious, we believe no misconduct occurred.

Here are the remarks in question. I asked myself to what extent can the court apply its own empirical evidence in an application of a family version of the Uniform Commercial Code. . . . By analogy, the court considered whats called a family version of the Commercial Code with respect to what I call, quote, the reasonableness, unquote, of the conduct of the parties . . . . [] The court considered what is the practice among family members who are first and second generation residents of the country, and to what extent are any of the practices . . . integrated in what took place in this case. Its the courts empirical evidence, which is not controlling but more anecdotal, that in trying a number of cases over the years involving families of the Vietnamese community, that we have many situations where the thought is to care for the . . . parents, who are new to the country, not able to speak the language . . . and that the concern of the newer generation before their parents will be reflected in these kinds of real estate transactions, that I have seen a number of, and which I think is part of what the court has been dealing with here. (Italics added.)

These comments were ill-considered and cannot be condoned. At first glance, they give the impression the trial court considered matters beyond the record, including anecdotal evidence not known to the parties. But read in context, against the whole of the statement of decision, we are satisfied there was no error that requires reversal.

If we focus on the substance of what was said, and for a moment put to one side the language used (which was inappropriate), we believe there was no prejudice to Cuong. Looking past the trial courts unfortunate remarks about its own empirical evidence, we note it had the presence of mind to recognize the courts empirical evidence . . . is not controlling. And the trial courts thoughts about a family version of the Uniform Commercial Code appear to have been no more than a short-hand for deciding whether the parties had acted reasonably. The trial court heard testimony from Le, Cuong, their mother, and several relatives, and considered extensive documentary evidence. There is no general claim the evidence was insufficient to support the judgment (the reader will recall some narrow insufficiency arguments we considered and rejected), although, understandably, Cuong believes his version of events was more persuasive and should have been accepted. We are satisfied the record supports the findings made in the statement of decision, and in the context of the record as a whole, the comments at issue do not convince us there was improper reliance on facts not in evidence. The ill-advised comments by the trial court do not require reversal of the judgment.

VII

Finally, Cuong argues the fee award was improper because the court did not order the property sold immediately, the remedy Le sought on the partition cause of action. Alternatively, he argues the amount must be reduced because the partition claim was only one of eleven causes of action in the complaint. There is no merit to these points.

Costs of partition include reasonable attorney fees incurred or paid by a party for the common benefit. (Code Civ. Proc.,  874.010, subd. (a).) The sum awarded may be ordered paid prior to judgment, and if not, it must be included in the judgment. (Code Civ. Proc.,  874.110.)

There was no error in the fee award. The fact that a partition judgment postpones sale to a future date does not make it any less a partition judgment. No authority is cited for denying fees in this situation, nor is there any sound reason to do so.

The apportionment argument fares no better. The question is what is a reasonable fee, and the trial court found it was 60 percent of the sum requested. Cuong does not contend that finding lacks support in the evidence. Nor does Deacon v. Deacon (1929) 101 Cal.App. 195 support his position, for there the trial court failed to make a finding on what was a reasonable fee for prevailing in a partition action. Here, a reasonable fee was set, and no grounds have been shown to set aside or modify the fee award.

Since no error is shown in the judgment, it must be affirmed. Respondent is entitled to costs on appeal.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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[1] Le Dung Bui and Cuong M. Bui are siblings, and Kim H. Phan is the wife of Cuong M Bui. To avoid confusion, we shall refer to the parties by their first names.

[2] The facts are based on the statement of decision issued by the trial court.

[3] A tenant is guilty of unlawful detainer when he continued in possession after default in payment of rent and has been given three days notice, in writing, to pay the rent. (Code Civ. Proc.,  1161, subd. (2).)