Le v. Tran

Filed 8/26/08 Le v. Tran 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, James P. Gray, Judge. Affirmed.

Phong Hung Tran, in pro. per.; Eber Bayona for Defendant and Appellant.

Stephen D. Johnson for Plaintiff and Respondent.

* * *

Plaintiff Tru Le sued defendant Phong Hung Tran for breach of contract, fraud, and other claims with respect to a promissory note. The jury found in Les favor, awarding damages in excess of $450,000. Tran appeals, claiming that the trial judge erroneously admitted evidence and that substantial evidence failed to support the verdict. We disagree and affirm.

I

FACTS

We view the evidence in the light most favorable to the prevailing party, resolving all conflicts in his favor. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.) Plaintiff Tru Le and defendant Phong Hung Tran were acquaintances. Le made two loans to Tran, both of which he repaid. In November 2004, Tran asked Le for a loan of $500,000. Tran told Le he had equity of $500,000 in his home. Le wanted collateral for the loan. Tran said that he was the sole owner of Coastline Pain Center, which would serve as collateral for the loan. He stated that the loan would be used to pay off some medical equipment. Le agreed to loan Tran $400,000, subject to documentation to be prepared by Les attorney.^[1]

One evening soon after this discussion, Tran came to Les house and told Le he needed the money immediately. Tran brought with him a one-page document entitled Promissory Note (the note). It stated that Tran promised to repay Le $400,000 within one to two years. It further stated: This Note is secured by separate properties: house and business including fixtures, equipment, stock in trade and goodwill, now owned or herein after acquired. According to Le, the agreed interest on the note was 15 percent. Le wrote Tran a check for $400,000 in exchange for the note.

Le told Tran that he did have a condition before he cashed the check, Tran was to go to Les attorneys office to take care of the paperwork. Le intended that Tran execute liens against his property to secure the loan. Tran promised that he would. Tran never did so, and never repaid the loan. In November 2005, he wrote a letter to Les attorney, denying he had ever promised to secure the note.

Unbeknownst to Le, Tran had a number of unreleased federal tax liens on his home and businesses. These liens were recorded prior to the date of the loan, including a lien against Coastline Pain Center for approximately $336,000, recorded in 2002, and a lien for approximately $92,000, recorded in 2003. There was also a personal lien against Tran for approximately $562,000, recorded in 2003.^[2] According to Le, he never would have entered in the loan with Tran if he knew that Tran had unreleased tax liens and lacked the intent to provide him with security for the loan.

Le filed suit against Tran in November 2005. His second amended complaint alleged claims for breach of contract, fraud, common counts, and two causes of action for rescission. Tran filed a cross-complaint alleging various claims of his own. In April 2007, the case proceeded to trial, and the jury awarded Le $457,960 on his breach of contract claim. Tran now appeals.

II

DISCUSSION

Although Tran purports to raise at least five issues, they can be grouped into two categories the admissibility of the tax liens at trial, and the question of substantial evidence. We address them here accordingly.

Admissibility of Tax Liens

Shortly before trial, Le discovered the existence of the federal tax liens against Tran and his business. He moved to shorten time on a motion to amend his complaint to add a paragraph alleging that Tran concealed the existence of the tax liens to hide that his medical practice was in trouble. The motion to shorten time was denied, and due to the pendency of trial, Le could not bring a noticed motion.

On the first day of trial, Tran filed a motion in limine to exclude the tax liens from evidence. He argued that the liens were not relevant and any probative value was outweighed by the potential for prejudice. The trial court denied the motion. It also denied Trans oral request for a continuance, in the event the motion was denied, to give him additional time to prepare to discuss this issue at trial. The trial court noted there had been no offer of proof that the existence of the tax liens was a surprise to Tran, and thus it did not provide cause for a continuance. Tran now claims that both rulings were an abuse of discretion and so prejudicial that a new trial is required.

We review the admissibility of evidence for abuse of discretion. The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) We find no such error here. The first issue is relevance. Tran argues, citing cases from the 19th century, that relevant evidence should be strictly defined by the pleadings, and that because the tax liens had no direct relevance to the issues pleaded, their existence should have been excluded.

Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact . . . . (Evid. Code, 210.) This definition of relevant evidence is manifestly broad. Evidence is relevant when no matter how weak it is it tends to prove a disputed issue. (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.)

A key issue at trial was whether Tran breached his promise to provide security for the note, thus allowing Le to declare him in breach of contract. The existence of prior and senior security interests on the same property that were meant to secure the loan is directly relevant to Trans intent to perform at the time he entered into the contract. Thus, the liens were relevant to Les claim for breach of contract. Le also pleaded a claim for fraud, alleging that Tran had no intent to keep his promise to provide security for the note. The existence of prior tax liens was also relevant to this claim. Thus, we find the tax liens were relevant.^[3]

Tran next claims that the tax liens should not have been admitted under section 352. That section states: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Tran, however, does not sufficiently brief this issue. He merely cites section 352 and refers to a later discussion in his brief of prejudice. That section of his brief, however, discusses the miscarriage of justice standard required to reverse after evidence has been erroneously admitted. It does not discuss the different and separate test for admissibility under section 352. Tran has therefore waived the issue of admissibility under section 352. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.)

Tran also claims that if the tax liens were admitted, the court should have granted his oral motion to continue the trial to allow him further time to prepare. The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial courts exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. [Citation.] (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)

Rule 3.1332 of the California Rules of Court speaks to the issue of trial continuances. Rule 3.1332(a) states: To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. Continuances are disfavored and must be supported by a showing of good cause. (Cal. Rules of Court, rule 3.1332(c).)

We find no good cause here. Tran had time to prepare a written motion in limine, so the issue was not a complete surprise. While Tran notes his surprise that the tax liens might be an issue and asserts that his counsel did not learn of the liens until shortly before trial, there is no showing at all that the existence of the liens was a surprise to Tran himself. Tran should not be granted a continuance based on his own failure to fully disclose all potentially relevant facts about the subject property to his own counsel. Further, given that the liens were on the same property that Le alleged Tran had promised as security, it strains credulity that Tran might not have considered the liens could be an issue in the case. We find no good cause for a continuance, and thus no abuse of discretion by the trial court.

Substantial Evidence

Tran next argues there was not sufficient evidence to support the judgment. Specifically, he claims there was insufficient evidence on the questions of damages, breach of contract, and the rate of interest.

Where findings of fact are challenged in a civil case, we must determine whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another ground as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . . (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) The testimony of a single witness may alone constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

The jury found in Les favor on the breach of contract claim. Le introduced the note into evidence. He also testified regarding Trans oral promise to provide security for the loan. It was undisputed that Tran did not execute the security documents or, for that matter, repay the loan. Thus, there was sufficient evidence to support the jurys verdict on the breach of contract claim.

With respect to the measure of damages, Tran argues that because Les claim of breach was based upon Trans failure to provide security, he can only recover damages for the failure to do so. He argues Le suffered no damages as a result of his failure to provide security. Tran is wrong. By failing to provide security, as promised, he breached the contract. (See Rest.2d, Contracts 235 (2): When performance of a duty under a contract is due, any non-performance is a breach.) Because Tran breached the contract, Le was entitled to terminate and sue for full damages at once. The measure of damages in a breach of contract claim is the amount that will compensate for all damages proximately caused. (Civ. Code, 3333.) Accordingly, Le was entitled to sue for the full amount of the loan.

With respect to the amount of interest, Tran claims the 15 percent Le testified to is usurious. He therefore appears to argue that Le was entitled to no interest at all, despite the fact that he claims the judgment awarded Le 10 percent interest, which he admits is allowable under California law. (The judgment purports to reflect seven percent interest.) Either way, because Le was awarded interest based on the amount legally permitted rather than the contract, we see no issue of substantial evidence.

In sum, we find no error. There was substantial evidence to support the jurys finding that Tran breached the contract. He was therefore liable to Le for the full amount of the loan.

III

DISPOSITION

The judgment is affirmed. Le is entitled to costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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^[1]Le also made two other loans to Tran, one for $9,000 and one for $6,000, in September and October of 2005.

^[2]Tran later testified that these liens were the subject of a dispute he was in with the Internal Revenue Service relating to the double taxation of personal and corporate income.

^[3]Tran also argues that Le failed to provide an offer of proof that would suggest the tax liens rendered the promised security deficient. This, however, is an issue of the weight that should be given to the tax liens, not whether they were relevant under Evidence Code section 210. No offer of proof was required.