Opinion
G052662
05-31-2017
TONY VAN LAM, Plaintiff and Respondent, v. KEVIN QUOC TRAN et al., Defendants and Appellants.
Kevin Quoc Tran and Tom Tran, in pro. per.; Law Office of Kenneth Alan Reed and Kenneth Alan Reed for Defendants and Appellants. Russo & Duckworth and J. Scott Russo for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00713846) OPINION Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. Kevin Quoc Tran and Tom Tran, in pro. per.; Law Office of Kenneth Alan Reed and Kenneth Alan Reed for Defendants and Appellants. Russo & Duckworth and J. Scott Russo for Plaintiff and Respondent.
* * *
This is an appeal after a jury verdict of approximately $814,000 and a court order to quiet title in favor of plaintiff Tony Van Lam against defendants Kevin Quoc Tran and Tom Tran, his father. The essence of Tony's principal claim, fraud, was based on the assertion that Kevin tricked him into conveying a majority interest in a commercial real estate building Tony owned in exchange for a minority interest in a limited liability company owning undeveloped land in Riverside County. Tony argued at trial that Kevin's entire scheme was fraudulent. The jury found in his favor, awarding damages, and the court quieted title to Tony's building.
Collectively, Kevin Tran and Tom Tran are referred to as "the Trans." Because numerous family members are involved on both sides of this case, we refer to the Trans as well as Lam and his brothers by their first names to avoid confusion. No disrespect is intended.
On appeal, the Trans raise numerous purported errors with regard to a lack of substantial evidence, jury instructions, the conduct of Tony's counsel, the admissibility and presentation of evidence, the court's decision to deny a bench trial, and alleged error with respect to the amount of the judgment. To the extent we can consider the merits of the issues due to the Trans' extremely poor briefing, we conclude none of these arguments rise to the level of reversible error. We therefore affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
Tony's Motion to Strike
Before we begin, we must first address a motion to strike approximately 75 percent of the facts set forth in the Trans' opening brief. Tony also requests sanctions in the amount of $1,200, the attorney fees incurred in preparing the motion. The Trans filed no opposition after being served with the motion. Shortly before oral argument, we notified the Trans we were considering granting the motion for sanctions and invited a response on that issue only. We received no such response. With a few minor exceptions, we grant the motion. We also conclude that sanctions are appropriate and order the Trans to pay sanctions of $1,200 to Tony.
Tony's motion argues the Trans have failed to follow the rules of procedure, arguing three points: the opening brief states mostly purported "facts" without reference to the record; the brief cites facts outside the record; and the Trans' appendix includes documents that are incomplete or inaccurate.
With respect to the first contention, Tony is almost entirely correct. Most of the facts stated in the opening brief lack record citations. We shall strike and disregard any alleged fact not supported by a record citation, or supported by an incorrect citation. (See Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; Cal. Rules of Court, rule 8.204(a)(1)(C); subsequent rule references are to the California Rules of Court.) We do not strike statements reasonably characterized as argument or where the record reference can be gleaned from surrounding context. Accordingly, this portion of the motion is granted with the exception of Nos. 51, 62, 66, 73, 74, 77, and 81.
In addition, the Trans' opening brief frequently miscites the record when there are citations. Sometimes they cite to tab numbers rather than page numbers, which is not permitted by the rules. Sometimes their citation bears no resemblance at all to the location of the document in the record.
Tony's next complaint is about the inclusion of purported facts that are outside the record or improperly included in the record. Most of these overlap the purported facts not supported by record citations. In any event, to the extent any fact is not supported by a document properly included in the record, it shall be disregarded. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) Again, we do not strike statements reasonably characterized as argument. This portion of the motion is granted with the exception of Nos. 119 and 130.
Finally, Tony argues certain documents should not have been included in the appellants' appendix. Appendices may only include "accurate copies of documents in the superior court file." (Rule 8.124(g).) With respect to the documents missing pages, our review of those documents reveals Tony is correct, and the motion is granted, with the exception of No. 5 (defendants' trial brief, which appears to be missing only a signature page). With respect to documents purportedly not part of the superior court file, three substitutions of trustee and reconveyances, the documents themselves contain no indicia they were ever filed. The Trans filed no opposition to this motion, so we have no indication from them at all that Tony's assertion is incorrect. Accordingly, we accept Tony's representation that they are not in the superior court file and order those documents stricken.
With respect to this motion, Tony requests sanctions in the amount of $1,200, reflecting the attorney fees required to draft the motion. Sanctions are appropriate under rule 8.276(a)(4) when a party commits an "unreasonable violation" of the rules of court. Having considered the pertinent arguments, we find sanctions appropriate because the violations here are repeated and egregious. The failure to properly cite to the record in particular has unduly and unnecessarily complicated the court's review of this case. Further, after they received Tony's motion, instead of attempting to correct the issues raised and submit an amended brief, they ignored the motion entirely. Their reply brief, instead of acknowledging their disregard of the rules of court and following the rules strictly, is actually worse than their opening brief due to its lack of headings and organization. They dismiss Tony's complaints about their brief, stating in their reply that he is merely "correcting the AOB's structure and not [addressing] the issues at hand . . . in this appeal." The Trans' violations, along with their cavalier attitude, sufficiently demonstrate that their violations of the rules of court were unreasonable. The motion to strike was, with a few minor exceptions, decided in Tony's favor, and he should never have had to file it in the first place. The sanctions amount that Tony requests, further, $1,200 is eminently reasonable, and sanctions are thereby awarded in that amount.
We largely disregard the Trans' reply brief. It has no organization that relates to the opening brief and fails to properly list headings in its table of contents. (Rule 8.204(a)(1).) (The four headings listed are Introduction, Argument, Witnesses, and Conclusion.) The reply brief meanders from issue to issue and includes only one legal citation in the entire brief. It is unclear which legal issue is meant to be addressed at any particular point. To the extent we find some nugget of value in this brief, we give it due regard. To the extent we missed any point the Trans were attempting to offer, that point is deemed waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Facts and Procedural History Based on the Limited Record
Our statement of facts reflects the record as it exists after our decision to grant Tony's motion to strike.
In June 2005, Tony purchased a commercial office building in Fountain Valley (the Fountain Valley property). His business occupied one of the two suites, and he rented out the other. Based on the financing and value of the building, Tony had approximately $1.1 million in equity. In June 2006, Tony deeded the Fountain Valley property to Tarbell Equities, LLC (Tarbell), an entity he owned in its entirety.
In October 2005, Tom purchased 6.74 acres of undeveloped land in Perris (the Perris property). According to the Trans, and Tony does not contest this point, Tom paid $1.4 million for this land. In November, a limited liability company called Kel Murieta Investment (Kel Murieta) was formed, with Kevin (5 percent ownership) and Tom (95 percent ownership) as the initial members. In March 2006, Tom transferred the Perris property to Kel Murieta. After that date, percentages of Kel Murieta were sold to various investors.
At some point in 2007, Kevin and Tony, who had met through Tony's brother Chris, began discussing a real estate transaction involving the Perris property and the Fountain Valley property. Kevin represented to Tony that the Perris property was worth $3.4 million, and the current intent for the land was to build a senior citizen apartment complex. Chris later testified Kevin told him he was working to change the zoning accordingly. Tony testified Kevin told him that engineers were being hired and working on the project, and that Kevin had Chinese investors ready to buy the property for $17 million.
Essentially, Kevin proposed that Tony give him a 50 percent interest in the Fountain Valley property, while Tony remained responsible for his mortgage. Kevin stated he would use the income from his 50 percent to improve the Perris property, and when it sold, they would split the profits evenly. Tony knew nothing about what improvements would be required to make the Perris property ready to sell, and relied on Kevin. In September 2007, they entered into an agreement giving Kevin 50 percent of the Fountain Valley property, and giving Tony 50 percent of Kel Murieta, the owner of the Perris property. As part of this transaction, a new LLC, Keld Investment (Keld) was formed to manage the Fountain Valley property. The Trans received a 50 percent interest, and Tony and his brother Hieu Lam received the other 50 percent.
Two other entities are relevant here. In 2010, the Trans transferred their interest in Keld to Phongdien Investment, LLC, an entity they owned. West Street Investment LLC was also owned by the Trans and held the Fountain Valley property at some point. Both were eventually named as defendants in this case.
As Kevin himself testified at trial, almost nothing had been done on the Perris property, despite Kevin's representations to Tony during negotiations. Kel Murieta paid no expenses to architects or engineers for work on the Perris property after January 2007. There had been no changes to the property's zoning. Nothing had been submitted to the city in terms of entitlement work.
Kevin testified that on September 27, 2007, he and Tony's brother Chris appeared together in front of notary Diane Smith and executed three deeds. Tony was not present, and Chris used Tony's identification. Chris was not authorized to sign on Tony's behalf, and indeed, Tony was unaware any of the deeds had been executed until this litigation began. Chris testified that he was pressured and duped by Kevin into forging Tony's signature. Kevin had told him that he and his father were not comfortable putting money into the development of the Perris property without the deeds and could not continue without them.
The first deed granted the Fountain Valley property from Tarbell to Tony. The second deeded the property from Tony alone to Tony and Kevin, as joint tenants, and the third deeded the property from Tony and Kevin to Keld, the limited liability company formed to manage the Fountain Valley property.
Chris testified that after the deeds were recorded, he tried to stay involved in the Perris property development. He met with an architect, but afterward Kevin told him he would take over dealing with the architect. Kevin also told him the city was supportive of the project, and told Chris about expenses he had purportedly incurred for engineering and other matters. As far as Chris, and by extension Tony, was aware, the project was moving forward.
Without Tony's knowledge, Kevin sold interests in Kel Murieta to other individuals in exchange for property. One of these individuals, Thanh Duc Lai, testified that Kevin made representations to him similar to the ones that Kevin had made to Tony years earlier. Lai deeded land to Kevin in exchange for purported interests in companies that owned properties waiting to be developed, which Kevin represented would net huge returns when eventually sold to Chinese investors. Lai and another investor, Matthew Vu, eventually sued Kevin. This court sustained a collective judgment of over $3 million in their favor in 2014. (Vu et al. v. Tran et al. (May 29, 2014, G048587) [nonpub. opn.].)
Since 2008, the Trans used the rents from the Fountain Valley property, which they had represented were going into the development of the Perris property, for other purposes. Kel Murieta, controlled by the Trans, borrowed money using the Perris property as collateral. This money was not used to develop or entitle the Perris property either.
In 2013, Kevin told Tony and Chris he needed more money to continue paying expenses and for property taxes. At one point, Kevin threatened to let the property default unless Tony gave him money for property taxes.
Shortly thereafter, Kevin sent four documents to Tony and told him that if he did not sign them, no further work would be done on the Perris property, the property would be foreclosed upon, and Tony would lose his investment. Two of these documents were entitled "Settlement Agreement, Waiver and Mutual General Release." One was with respect to the Fountain Valley property and the other with respect to the Perris property (collectively the settlement agreements). The other documents were amendments to the operating agreements of Keld and Kel Murieta. These documents bear Tony's notarized signature.
At trial, Tony testified that he did sign four documents, but the ones he signed were not the documents offered by the Trans at trial. He stated that only the signature pages of the true agreements were delivered to Kevin by Chris, and Chris testified similarly. Indeed, Kevin testified only the signature pages were delivered to him.
In 2014, Tony filed this action against the Trans and various entities they controlled, alleging fraud, seeking to quiet title and for an accounting. Trial occurred in May and June of 2015. The jury found in Tony's favor, and judgment was eventually entered in the principal amount of $814,918. The judgment also stripped the Trans and their entities of any interest in the Fountain Valley property. The Trans' motions for new trial and judgment notwithstanding the verdict were denied. They now appeal.
II
DISCUSSION
Substantial Evidence Regarding Civil Conspiracy
The Trans' first argument is that there was insufficient evidence to support a theory that Tom participated in a conspiracy to defraud investors. But the Trans have again violated rules of appellate procedure. In addition to the large portions of their opening brief already deemed stricken, the Trans' brief also fails to fairly reflect all of the evidence presented at trial, instead picking and choosing the facts most favorable to their arguments. They barely acknowledge, much less fairly discuss, evidence that is not in their favor. This is improper, and results in the waiver of any issue of substantial evidence. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.) Accordingly, we need not consider this issue further.
As part of this argument, the Trans request we take judicial notice of certain documents. As this is not a proper request for judicial notice and the documents are not relevant in any event due to the waiver of this issue, the request is denied.
Instructional Error
The Trans next argue the court erroneously instructed the jury. We review questions of instructional error de novo. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1373.) To constitute reversible error, the proponent of the argument must establish the instruction was both erroneous and prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).)
First, the Trans claim the following instruction on contract formation was erroneous: "Defendants claim that the parties entered into a contract . . . . To prove that a contract was created, Defendants must prove all of the following: [¶] 1 That the contract terms were clear enough that the parties could understand what each was required to do; [¶] 2 That the parties agreed to give each other something of value. A promise to do something or not to do something may have value; and [¶] 3 That the parties agreed to the terms of the contract. [¶] When you examine whether the parties agreed to the terms of the contract, ask yourself if, under the circumstances, a reasonable person would conclude, from the words and conduct of each party, that there was an agreement. You may not consider the parties' hidden intentions. [¶] If Defendants did not prove all of the above, then a contract was not created."
The contracts at issue were the purported settlement agreements, which Tony continued to maintain were not the documents he signed. The Trans argued the court should have instructed the jury that because the signatures were notarized, the documents were valid on their face.
Where to begin. First, the instruction as it pertains to contract formation was not erroneous, and the Trans do not offer any argument that it was. Indeed, they argued it was correct in their motion for judgment notwithstanding the verdict. "The Court properly instructed the Jury on contract formation. See Jury Inst. No. 15, a copy of which is attached." They also argued, at that time, that they had satisfied all three elements to prove contract formation, the third element being established by Tony's admission that he had signed the document before a notary. The Trans have not established this instruction was erroneous.
What they seem to be arguing instead is that the trial court should have additionally instructed the jury on the specific import of notarization. But the Trans provide no evidence they ever requested such an instruction. "In a civil case, '. . . there ordinarily is no duty to instruct in the absence of a specific request by a party . . . . [Citations.]' [Citation.] Thus, it is 'settled that a party may not complain on appeal that an instruction correct in law is too general or incomplete unless he had requested an additional or qualifying instruction.' [Citation.] When a trial court 'gives a jury instruction which is correct as far as it goes but which is too general or is incomplete for the state of the evidence, a failure to request an additional or a qualifying instruction will waive a party's right to later complain on appeal about the instruction which was given. [Citation.]' [Citation.]" (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1010-1011.) Accordingly, we find no error.
The Trans argue they did request such an instruction - in their trial brief. The Trans, unsurprisingly, provide no pinpoint citation to such a request. The only reference we can find is in the brief's conclusion, where the Trans argue the court, not the jury, should determine the authenticity of the documents before admitting them into evidence. "The Court can then instruct the jury on plaintiffs' burden to introduce evidence sufficient to sustain a finding that the agreements are not authentic or genuine." This is not a proper request for a jury instruction, lacking both the proper format and specific language for a proposed instruction. Accordingly, there was no error in the failure to give an instruction the Trans never requested.
Conduct of Counsel During Closing Argument
The Trans next argue that Tony's counsel, J. Scott Russo, engaged in egregious improper conduct during closing argument, requiring reversal. First, they contend Russo displayed a graphic showing the other investors allegedly duped by the Trans and their losses as a result of the purported fraud. They argue the court had deemed this information inadmissible. They fail, once again, to cite to the record on this point. They also fail to cite to their objection in the record. Nor is the graphic they complain about part of the record on appeal.
Further, no objection exists with respect to this part of Russo's closing argument. "'Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.' [Citation.] In addition to objecting, a litigant faced with opposing counsel's misconduct must also 'move for a mistrial or seek a curative admonition' [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation]. This is so because '[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.' [Citation.] The rule is the same for civil and criminal cases. [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795.) The Trans offer no argument that any misconduct was so persistent that an admonition would be inadequate. Accordingly, because of the failure to object at trial, this issue is not subject to appellate review.
The Trans' counsel made exactly one objection, on a different point, during this portion of Russo's argument.
At oral argument, now represented by counsel, the Trans offered this argument for the first time. That does not cure their failure to cite to the record or to submit the exhibit that is the primary subject of their complaint. Moreover, facts about other victims of the Trans' purported fraud was elicited during the testimony of the three victims who were permitted to testify. We simply cannot find that even if there was error with respect to addressing these facts during closing argument, it rises to the level of intentional misconduct, or that an admonition would have been insufficient.
Without the required separate heading, the Trans also now complain of several other comments Russo made during closing argument. These statements also went without objection, and are therefore not properly subject to review on appeal.
Conduct of Counsel During Direct Examination
The Trans also complain of Russo's conduct in asking improper leading questions during direct examination, which they argue was so improper it should result in reversal. The Trans refer generally to the testimony of several witnesses, but again, we do not consider issues that lack proper record references. Of the purportedly leading questions that do include citations, most were never the subject of objection by the Trans' counsel; for the same reasons as above, we do not consider them on appeal. In sum, between the lack of record references and lack of objections at trial, there is little for us to review here.
The Trans do provide a citation to one question that was successfully objected to by their counsel. This question was directed to Lai, regarding the amount of his judgment against Kevin. Counsel objected, stating no ground, and the court sustained the objection. Russo then asked whether Lai had a judgment against Kevin, and Lai answered without objection. This does not rise to the level of misconduct, nor does it require reversal.
Pattern Evidence
In a one-paragraph argument, the Trans purport to "renew their in limine objections" to the testimony of three witnesses who testified, in essence, that they were also defrauded by the Trans. Again, this argument includes no record references to their motions in limine or the court's rulings on their motions in limine.
It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2.) Thus, we have no factual arguments or legal analysis to consider, merely the Trans' assertions that the evidence should have been excluded. Our scope of review is limited to issues that have been adequately raised and are supported by analysis. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) By merely asserting error without analysis, the Trans have failed to show an abuse of discretion. (See People v. Alvarez (1996) 14 Cal.4th 155, 201.)
Presentation of Evidence
This argument is actually a potpourri of various complaints. First, the Trans claim that Tony was able to call a number of witnesses to show a pattern. We addressed this issue in the previous section, and fail to see how it has anything to do with how the presentation of evidence itself was unduly prejudicial.
One of these claims, that the trial estimate was doubled without warning from five to 10 days, was stricken as part of the motion to strike due to the lack of record references.
The Trans also claim the "presentation of evidence was prejudicial since the Jury should have first heard and determined the threshold issue: did the parties enter into a settlement agreement and release of all claims?" This has nothing to do with the "presentation of evidence," however. It is actually a backdoor attempt to appeal the court's ruling on the Trans' motion to bifurcate the case, which the court denied prior to trial. The court again rejected this argument at trial, concluding the issues were too intricately tied together to separate.
We certainly understand why the Trans wished to frame the question as one of rescission - it presumes the settlement agreements were valid in the first place, when one of Tony's key arguments is that they were not, so there was never any contract. In support of their argument that the rescission issue should have been decided first, they cite a case applying the rules for rescission of a settlement agreement, stating it stands for the proposition that the court must decide the issue of rescission before trial. In that case, unlike this one, there was no dispute as to whether an agreement existed. (Little v. Pullman (2013) 219 Cal.App.4th 558, 561.) The trial court here was correct in deciding to let the jury determine whether any agreements existed before ruling on any issue of rescission.
The Trans also mention Tony's order of presenting witnesses, noting that Tony himself was the last to testify. He first called his "pattern" witnesses, and then Kevin, his expert witness, his brother Chris, and finally himself. While this may, indeed, have been prejudicial to the Trans—meaning it hurt them more than it helped—it was neither unlawfully nor unduly prejudicial. The Trans provide no authority for the proposition that a party, in accordance with court rules, should not get to determine in what order and how to present his or her case.
Bench Trial
This is another attempt by the Trans to reclassify this case as one for "rescission of the settlement agreements and prayer for money damages." In sum, they argue, the court should have tried the case rather than a jury. As we discussed above, that argument, while creative, is a wholesale reimagining of Tony's actual theory of his case. He was not seeking rescission of the settlement agreements because, according to his consistent testimony, those "agreements" never existed in the first place. Determining whether this was true was properly decided by a jury as a question of fact. Ordering a jury trial, accordingly, was not error.
Proposed Judgment
The Trans final argument is that "[t]he court ignored its own request for an accurate accounting of actual rents collected . . . ." They state "[a]n issue of accounting was addressed on the last day of trial." What the cited portion of the record actually states, however, is the following:
"Mr. Krongold [the Trans' counsel]: And I anticipate a motion to challenge the amount of the judgment, the $814,000. First of all, the escrow amount, whatever gets dispersed, should be deducted from that. And there is also questions about how they came up with that based on the evidence, because there were property taxes, there were other expenses in the property that we believe were not taken into account.
"The Court: Okay. I think you have a good point. It may be worthwhile for the two of you to discuss that, too.
"Mr. Russo: We will discuss it.
"The Court: Meet and confer."
This is not, as the Trans claim, a "request for an accurate accounting" by the court. If the court made any request, it was for counsel to "meet and confer" prior to filing the motion the Trans' counsel stated he intended to file. There is no indication, however, that any such motion was ever filed. The Trans claim they objected to the amount of the judgment, but the document they refer us to is an objection relating only to costs.
Instead, the Trans simply assert the judgment was incorrect. The only evidence they cite in the record is the judgment itself. They provide their own calculations, stating the proper damages are approximately $392,000 rather than the approximately $814,000 awarded by the jury. Essentially, they are stating the amount of the judgment is not supported by substantial evidence. As we already discussed, the Trans' failure to fairly present the facts of the case waives any issue of substantial evidence. And even if we were inclined to consider it, their failure to cite to the record thoroughly eliminates any such temptation to do so. The Trans have failed to establish error with respect to the amount of the judgment.
III
DISPOSITION
The motion to strike is granted to the extent set forth above. The motion for sanctions in the amount of $1,200 is granted, payable to Tony.
The judgment is affirmed. Tony is entitled to his costs on appeal.
MOORE, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.