Nu v. Nguyen

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/4/13  Nu v. Nguyen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 
>

PHUONG TON NU,         Plaintiff and Appellant,               v.   MARK NGUYEN,         Defendant and Respondent.

G046839            (Super. Ct. No. 30-2011-00492672)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William M. Monroe, Judge.  Order affirmed.  Motion for sanctions on appeal.  Motion denied.

                        Truong and Associates
and Hoa Phu Truong; Phuong Ton Nu, in pro. per., for Plaintiff and Appellant.

                        Rutan & Tucker and
Peter J. Howell for Defendant and Respondent.

*                      *                      *

                        This appeal illustrates
how different standards of review can produce 
dramatically different outcomes. 
We have before us two matters: 

                        (1)  The appeal from an order of the trial court
granting a motion for sanctions pursuant to section 128.7 of the Code of Civil
Procedurehref="#_ftn1" name="_ftnref1" title="">[1]
against appellant Phuong Ton Nu, erstwhile plaintiff in this now-dismissed
action.  Nu is no longer the plaintiff
because she dismissed this action the day before the section 128.7 motion was
set to be heard. 

                        (2)  The motion on appeal by respondent Mark
Nguyen for sanctions for bringing a frivolous appeal.

                        We affirm the order
granting the motion for sanctions,
under the combination abuse of discretion and substantial evidence standards
which apply to section 128.7 review. 
Substantial evidence readily supports the trial judge’s conclusion Nu
did not have evidentiary support for her initial complaint based on entrusting
some $70,000 to defendant Mark Nguyen. 
(See § 128.7, subd. (b)(3).) 
Nu simply contradicted herself too many times about what the money was
for and where it went.

                        But we will deny the
motion for sanctions on appeal, because, looking at the record afresh in the
context of the exercise of our >own discretion, there is enough evidence
to indicate Nu might have had good faith questions about the handling of her
money.  In particular, we note it is
undisputed that title to a certain Vietnamese condo was still in the name of Nguyen’s business associate Chan Vinh Khanh as
of 2009, while there is clear evidence that Nu gave Nguyen $70,000 in November
2008, and that money went into the checking account of Nguyen’s company, Decima Realty. 
While Nguyen’s briefs are by far the more articulate in this appeal,
conspicuously missing from Nguyen’s papers is a consistent unified theory that
explains all the evidence in a way that would mandate a decision in his
favor.  We therefore deny his request for
sanctions.

FACTS

                        On July 20, 2011, Phuong Ton Nu filed a complaint
against dentist Mark Nguyen, alleging she had given Nguyen $70,000 to invest in
real estate, and Nguyen just took the money and never got back to her.  The complaint did not specify any particular real
estate to be purchased.  As worded, the
real estate might have been purchased anywhere in the world.href="#_ftn2" name="_ftnref2" title="">[2]

                        Attached to the
complaint were two exhibits.  Exhibit A
was a copy of two notes.  The first note
was dated November 4, 2008,
and appears to have been addressed to Khanh from Nguyen:  “I, Mark Nguyen, have received 45,000.00 in
cash for Decima Realty Assoc. and have deposited into the checking account at
Washington Mutual.  I am expecting a
25,000.00 wire transfer.” 

                        The second note said “I
received this $70,000.00 in full from Phong Ton Nu to give to Chanh Vinh
Khanh.”

                        Exhibit B was a letter
from Nu’s attorney Truong dated June 14, 2011 demanding immediate return of the
$70,000, with the threat:  “If my client
prevails, which the facts of this case clearly indicate so, interest rate and
related costs will be demanded.”

                        Nu’s deposition was
taken November 4, 2011.  Two preliminary matters must be noted.  First of all, Nu needed an interpreter.  She had fled Vietnam
at time of the fall of Saigon in 1975, had married a
Vietnamese doctor, and worked as a medical assistant until 1993, when she
retired.  Second, the parties are
connected by familial ties:  Nu knows
Nguyen as “Bi.”  Nguyen was a “nephew in
the family” who had been sponsored by Nu’s family back when Nguyen was in a
refugee camp.  And Khanh was a nephew of
Nu’s late husband.   

                        According to Nu, Nguyen
approached her days before November 4,
2008 for a loan “to invest into real estate.”  Nu said there were six investors in his
group, which included himself and Khanh. 
Nu said she actually gave Nguyen the $70,000 on November 4, 2008.

                        As her later testimony
at deposition would demonstrate, however, Nu did not understand the difference
between a loan and a purchase of an equity interest.  On the one hand – as if the deal were a loan
– she testified Nguyen “asked me to borrow the money so he could invest” money
into his corporation and invest “in buying houses for renting.”  On the other hand, she expected her money
back “plus profits” which would be more consistent with ownership in some sort
of real estate trust or partnership.

                        As to the transfer of
the money, Nu’s story at her deposition tallied with the November 4, 2008 receipts signed by Nguyen.  She said she first gave Nguyen $45,000 in
cash, then $25,000 was wire-transferred. 
She brought the suit when she heard from someone in the family that
Nguyen had sold the property.  In fact,
Nu was later able to show that the $45,000 in cash and $25,000 wire-transferred
went into Nguyen’s Decima Realty account. 
And it is a reasonable inference that Decima Realty was the formal
vehicle used by Nguyen and his group of investors.

                        The centerpiece of Nu’s
deposition was a letter written in Vietnamese by Nu on November 20, 2008.  There are two certified English translations
of the letter in the record.  Since the
letter is relatively short, we now reproduce the more readable of the two
translations.  (As noted above, the “Bi”
referred to in the opening clause of the letter refers to Nguyen.)

                        “Dear Khanh Long,

                        “I have sent to Bi,
daughter of aunt Nam,
$70,000 to pay for your house.  I am now
explaining to you the financial situation of the house in Vietnam.

                        “The purchase price was
109 bars.  I was watching for the price
to go down so I can buy gold to pay for it because you told me you would only
accept gold.  Therefore, when I paid Bi
it was $880.  How can you calculate based
on $1000?  Now you take the money, the
price is:  $880 x 109 = $95,920.

                        “Therefore, I still owe
you:  $96,000 - $70,000 =  $26,000.  Do not charge more because right now I am not
making money.  Just calculate as
such.  When the house price goes up, if I
sell it, you also have to sign off in order for it to be sold.  I will share the profit from it with you
fairly.  Aunt Ti only gave me $50,000;
she made a lot of repairs.  As for me, I
had to come up with money to repair mine, to be shared separately.  I hope you understand me.  I know you are very understanding toward me,
and not wanting to take too much advantage of me.

                        “Love to you and your
children.

                        “Phuong.”

                        Confronted with the
letter at the deposition, Nu acknowledged she wrote it and admitted the letter
indicated that Nguyen had simply been a conduit between Nu and Khanh involving
a Vietnamese condo deal.  But Nu quickly
contradicted herself about the letter. 
First she said she sent $70,000 to Khanh, but Khanh “didn’t receive the
money,” then she turned around (literally on the same page in the deposition
transcript) and claimed the $70,000 was a different $70,000, and the letter
only referred to money she was “planning” to give, but had “not given yet.”

                        Testimony earlier in the
deposition about the letter – before
the confrontation with its actual words – went like this:  Khanh had made a request for “more
money.”  But Nu “had no more money.”  The letter was not related to the “loan” of $70,000 to Nguyen; rather Khanh had
asked for his own loan.  Nu’s point in
writing the letter was she was refusing the loan request from Khanh because she
had run out of money. 

                        Earlier in the deposition
Nu had also said she owned no real estate in Vietnam, and later on – after
being shown the letter – she said the letter merely reflected her desire to put
money into the Vietnamese condo prior to obtaining ownership.

                        At the deposition Nu was
also confronted with a power of attorney form she signed – again the original
was in Vietnamese – the substance of which was that Nu

didn’t
own the Vietnamese property, but was in the process of buying it, and needed to
authorize her sister to bargain with Khanh to complete the transaction.

                        The power of attorney
form identified Nu as a “party directly making full payment to buy the
apartment No. 95 [address in Ho Chi Minh City] from Mr. Chau Vinh Khanh, who is the person who legally owns the apartment legally
based on the Certificate of Land Use Right No. H 00216 granted by the People’s
Committee of District 1.”  (Italics added.)  Then, after identifying Nu’s sister, it
stated:  “By this document, the
Authorizer agrees to allow the Authorized Person to have all rights on behalf
of and in the name of the authorizer to do the following:  [¶] 
Ms. Diep is entitled to contact Mr. Chau Vinh Khanh directly to require
Mr. Khanh to assign the apartment [gives address] to [Nu’s sister] in
compliance with requirements of the law.” 
At her deposition Nu said the power of attorney was so her sister could
buy the condo.

                        And finally, at the
deposition Nu was confronted with the second-page fragment of what was
apparently once a two-page letter (the first page was never produced) signed by
Nu, dated February 10, 2007,
apparently to Khanh, which ended with the words, “Thank you so much for helping
me to buy a satisfying unit.”  Nu
testified the letter related to a house owned by Khanh.

                        Nu had earlier testified
she had no communications with Khanh prior to November 4, 2008.

                        In the wake of her
remarkable deposition, in late December 2011 Nguyen’s attorney sent Nu’s
attorney a proposed motion for sanctions under section 128.7, urging Nu to take
the opportunity to withdraw her case.  Nu
declined, so the motion was filed January 18, 2012, with a hearing date of
February 16.  The basic thrust of the
moving papers was that Nu’s deposition had proved she had no evidentiary
support for her complaint.  (See
§ 128.7, subd. (b)(3).)

                        Nu’s opposition was
filed February 14, just two days before the hearing.  The opposition made these factual
assertions:  (a) Nguyen had >tried to sell Nu a condo in Vietnam, but
the price was too high, and Khanh “then kept her funds when the unit [was] sold
to a different buyer”;  (b) there was a
“continuation of negotiation between” Nu and Khanh “regarding the Vietnam
Condo, and ultimately the transaction did not materialize”; and (c) “Defendants
[by this time Khanh had also been named as a defendant] did not sell the condo
to Plaintiff.” 

                        Nu’s declaration flatly
stated she “entrusted $70,000 to Defendant Mark Nguyen to be remitted to
Defendant Chau Vinh Khan” and “ultimately the transaction did not materialize”
and “[t]he transaction was then assigned to my sister who purchased the
Condo.”  Indeed, she declared “I did not
purchase the Vietnam Condo.”

                        But clearly something
had gone on.  As alluded to above,
included in Nu’s opposition papers was one of Decima Realty’s bank statements on a Washington Mutual checking
account, for the period November 30, 2008. 
That statement clearly shows a $45,000 “customer deposit” on November 4,
and $25,000 wire transfer on November 6, 2008. 


                        Nu unilaterally
dismissed her suit on February 15, 2012 – one day prior to the hearing on the
sanction motion.  The hearing was
eventually continued to March 27, 2012, when the motion was granted.  The court ordered Nu and her attorney to
jointly pay $22,292.04 in attorney fees incurred by Nguyen.  Nu has timely filed an appeal from the order.href="#_ftn3" name="_ftnref3" title="">[3]

DISCUSSION

                        The standard of review
for an order granting a motion for sanctions under section 128.7 is a
combination of the three basic standards of review:  de novo, substantial evidence, and abuse of
discretion.  “The abuse of discretion
standard is not a unified standard; the deference it calls for varies according
to the aspect of a trial court’s ruling under review.  The trial court’s findings of fact are
reviewed for substantial evidence, its conclusions of law are reviewed de novo,
and its application of the law to the facts is reversible only if arbitrary and
capricious.”  (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)href="#_ftn4" name="_ftnref4" title="">[4]

                        In our case this boils
down to whether substantial evidence supports the idea that Nu had no
evidentiary support for her suit.  It
does.  And it is therefore clear the
trial court was well within the bounds of its discretion in granting the
section 128.7 motion. 

                        The contradictions,
vagaries and unanswered questions in this record are inescapable.  Did Nu have a deal with Khanh concerning a
Vietnamese condo?  If she never
communicated with him prior to November 2008, what about the February 10, >2007 letter, apparently to Khanh, which
ended with the words, “Thank you so much for helping me to buy a satisfying
unit”?  What was she talking about, if
not a Vietnamese condo purchase?  But if
so, why sue Nguyen when, as her letter showed, $70,000 had long since gone into
a Vietnamese condo?  And we note in
particular Nu makes no attempt to contest the translation of the letter and its
(at least in English) clear use of the past tense.  And the English translation of the letter
admits of only one thought:  The $70,000
had already gone into the Vietnamese
condo deal and Nguyen’s only involvement was simply as a conduit between Nu and
Khanh. 

                        Abraham Lincoln famously
said “No man has a good enough memory to make a successful liar.”  But even accepting Nu’s characterization of
herself as merely a hopelessly confused elderly woman the trial judge could
easily conclude she had no evidentiary support for her suit against
Nguyen.  So we affirm the trial judge’s
award.

                        But now we turn to
Nguyen’s motion for appellate sanctions. 
This is a matter within our own discretion.  (E.g., Winick
Corp. v. County Sanitation Dist. No. 2

(1986) 185 Cal.App.3d 1170,
1181-1182 [“In order to impose additional sanctions for prosecuting a frivolous
appeal, this court must use its own discretion and judgment to decide whether
the appeal of these issues meet the standards and guidelines of frivolous
conduct . . . .”].) 

                        We
examine sanction requests for frivolous appeals under the standards laid down
by our Supreme Court in In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650-651. 
We ask whether “no reasonable attorney could have thought it
meritorious” or whether it was “prosecuted for an improper motive” >in light of the policy that disfavors
any “chilling” effect created by appellate sanctions and the concomitant rule
that appellate sanctions “should be used most sparingly to deter >only the most egregious conduct.”  (Ibid.,
italics added.)

                        Under
the Flaherty standard we do not
believe appellate sanctions are warranted and exercise our own discretion not
to impose them on Nu.  The
contradictions, vagaries and unanswered questions in the record cut both
ways.  There are just a few too many
unanswered questions inherent in this appellate record for us to say
confidently that Nu’s case – and by extension her appeal – had no evidentiary
support from the beginning.

                        One big unanswered
question is why Khanh, by May 2009, held legal title to the Vietnamese condo >if Nguyen’s whole point on appeal – that
Nu’s $70,000 had, as of November 2008, already gone to pay for that condo – is
correct?  If the November 2008 letter was
so damning to Nu (because it shows her $70,000 really was put to its intended
purpose), then why should she acknowledge Khanh’s
title to the Vietnamese condo in a May 2009 power of attorney and authorize her
sister to deal with him concerning that condo? 


                        Then there is the
February 2007 letter fragment, which indicates Nu was dealing with Khanh
regarding some property by then, and
the most logical inference is that she was in the process of buying the Vietnamese condo from him, possibly as early
as February 2007.  But if that’s true,
why didn’t she ever receive title?  And
how can $70,000 sent to Khanh sometime before
November 2008 to buy a condo in Vietnam (the thrust of Nu’s November 20, 2008
letter) be reconciled with $70,000 clearly deposited into Decima Realty’s
checking account in the two installments of November 4 and 6, 2008?

                        Most problematic to
Nguyen’s basic narrative on appeal – that Nu sued him for money that actually
went into the Vietnamese condo deal which he had nothing to do with – is
this:  If Nu was buying a Vietnamese
condo on the installment plan, why did her money get funneled through >Nguyen’s realty company, Decima?  And the money clearly was channeled through Decima, as demonstrated by the bank statement
attached to the opposition which showed two deposits of $45,000 and $25,000
exactly correlating to the receipt Nguyen signed which made its way to exhibit
A of the complaint.  We further note the
funneling through Decima also tallies with Nu’s statement that when Nguyen approached
her for a “loan” he was part of an investment group.  That is, maybe the $70,000 >wasn’t really intended for the
Vietnamese condo after all.href="#_ftn5"
name="_ftnref5" title="">[5]

                        Nu may have been
hopelessly confused about the nature of the transaction, but given this record,
we are also confused as to exactly
what happened.  At any rate, there are
substantial grounds for concluding Nu in fact did give Nguyen $70,000 for >something and she never got it
back.  We do not have the benefit of a
record which would allow us to say that Nguyen was bound to win.  Nguyen’s motion for appellate sanctions is
denied.

III.  DISPOSITION

                        The
order granting sanctions of $22,292.04 is affirmed.  The motion on appeal for appellate sanctions
is denied.  In the interests of justice
each party shall bear its own costs on appeal.

 

 

                                                                                   

                                                                                    BEDSWORTH,
ACTING P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

THOMPSON, J.