Truong v. Nguyen
Filed 9/6/13 Truong v. Nguyen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
HOA PHU TRUONG,
Plaintiff and
Appellant,
v.
MARK NGUYEN,
Defendant and
Respondent.
G047039
(Consol. with G047151)
(Super. Ct.
No. 30-2011-00492672)
O P I N I O
N
Consolidated appeals
from two orders of the Superior Court
of Orange County,
William M. Monroe, Judge. Appeals from
both orders dismissed. Two motions for
sanctions on appeal by Defendant and Respondent. One motion denied, one motion granted.
Truong and Associates
and Hoa Phu Truong for Plaintiff and Appellant.
Rutan & Tucker and
Peter J. Howell for Defendant and Respondent.
* * *
I. INTRODUCTION
The plaintiff’s attorney
in a now dismissed breach of contract action, Hoa Phu Truong, challenges two
orders he pay sanctions to the defendant, pursuant to section 128.7 of the Code
of Civil Procedure.
title="">[1] We have consolidated the appeals from each of
the two orders and now dismiss them.
Truong filed his first appeal from an appealable order, but filed it too
late. He filed his second appeal timely,
but it was from a nonappealable order.
There are also two
motions for sanctions on appeal based on filing two frivolous appeals. The first motion attacks the appeal from the
initial section 128.7 order granting joint sanctions against Truong
amount of $22,292.04. We deny this
motion. As we explain in the companion
appeal (G046839), the record in this case raises too many unanswered questions
as to precisely what happened to the $70,000 entrusted by Nu to defendant
Nguyen to assume the case was totally meritless to begin with, or – more
apropos to the motions before us – that Truong’s appeal from the determination
his client’s complaint lacked evidentiary support is sanctionable under the
standards set out in In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650-651.
The second motion
attacks the appeal from an order assessing sanctions of some $3,660 against
Truong alone for having brought a motion for reconsideration. This appeal was truly a loser from the beginning. It is from the sanctions attendant to the
denial of a reconsideration motion which itself was not valid in the first
place since it was untimely. And, in any
event, the appeal is taken from a clearly nonappealable order. Even under the liberal Flaherty standard, no reasonable attorney would have brought the
II. FACTS
Sometime in June 2011,
Phuong Ton Nu retained attorney Truong to bring a breach of contract action
against dentist Mark Nguyen, the gravamen of which was that she had given
Nguyen $70,000 to invest in real estate, and Nguyen just took the money and
never got back to her. As support for
her claim, she showed Truong a receipt signed by Nguyen saying, “I received the
$70,000 in full from Phong Ton Nu to give to Chan Vinh Khanh.†As further support, she gave Truong a letter
from a previous attorney that recited what he thought the facts of the case
were: In 2008, Nu wanted to be a partner
in a real estate syndicate (Decima Realty) being put together by Nguyen with
the purpose of buying “real estate in
Southern California for various purposes,†with a full $70,000 buy-in
price. (The italics are added – the
reason will become apparent in the next paragraph.) But, said the letter, after taking Nu’s
money, the syndicate just refused to acknowledge Nu’s interest. Truong filed a complaint on Nu’s behalf in
July 2011.
Nu’s deposition was
taken November 4, 2011. We set out a
more detailed summary of what happened in that deposition in the companion
appeal. A précis for purposes of this
case is that Nu was shown a letter she had written to Khanh that indicated the
$70,000 had already been used to
purchase a condo in Vietnam. Moreover, Nu became – to be charitable –
quite flustered when confronted with the actual text of the letter. Nu suddenly asserted the $70,000 in the
letter was a different $70,000 than the $70,000 she was suing on.
Nguyen’s counsel clearly
thought Nu’s case had collapsed, and called Truong three days later, leaving a
message asking Truong how he intended to proceed in the wake of the
deposition. Three days passed; the
message was never returned. So, on
November 10, Nguyen’s counsel sent Truong a letter elaborating his take on the
deposition. Counsel’s letter recited
that even before the July 2011 filing, Truong had been informed of the “true
nature†of the Nu-to-Nguyen-to-Khanh exchange, i.e., Nu was repaying Khanh for
the purchase of the Vietnamese condo.
Hence Nguyen’s counsel’s letter, in light of the deposition, asked that
the complaint be dismissed, and added the threat of a malicious prosecution
action in the wake of the inevitable resolution of the case.
Over a month
passed. Then, on December 22, 2011,
Nguyen’s counsel sent a copy of a proposed motion for sanctions under section
128.7 to Truong, telling Truong it would be filed if the action were not
dismissed within 21 days. More than 21
days passed and the motion was filed January 18, 2012, setting a hearing date
of February 16, 2011.
Truong filed his
opposition to the motion two days before the hearing, including Nu’s
declaration in opposition, asserting she had entrusted $70,000 to Nguyen for
the purchase of a condo in Vietnam, which she never received. But then, the next day – the day before the
hearing – Nu filed a dismissal of the case (albeit a dismissal without
prejudice). Truong sent Nguyen’s counsel
a fax announcing the dismissal, saying he assumed Nguyen would now dismiss the
motion for sanctions in light of the dismissal.
Which, of course Nguyen
didn’t. Not at this late date. The actual hearing on the motion was
postponed to March 27, basically to give Nguyen’s counsel the opportunity to
file a sufficiently detailed declaration supporting his attorney fee request.
And
on March 27 (a Tuesday), the trial court assessed sanctions against both Nu and
Truong in the amount of $22,292.04, as memorialized in a minute order of that
date. A formal notice of ruling was sent
to Truong the next day on March 28, 2012.
Sixteen days later, on
Friday, April 13, 2012, Truong filed a motion for reconsideration. Essentially, the motion sought
reconsideration of the order assessing sanctions against Truong himself, but
did not seek reconsideration of the order as it affected his client.
There were no new facts
bearing on the $70,000, but there was this revelation: Sometime before the initial February 16
hearing date, “Plaintiff’s counsel advised his client, Ms. Phuong Ton Nu, to
dismiss the action but Plaintiff refused to do so.†Truong was only able to convince his client
to pull her case by February 15. The
hearing on the motion for reconsideration took place on May 31, 2012, and the
motion was denied both (1) because it was not timely and (2) because all the
facts in the motion for reconsideration were known to Truong prior to February
16.
Nguyen also had, two
days before the May 31 hearing (justifiably confident about its probable
outcome) filed a second motion for sanctions under section 128.7 on the theory
the reconsideration motion was itself frivolous, for the reasons which the
trial court found persuasive (untimeliness and lack of new facts). This sanction motion was heard June 26,
2012, and resulted in a new sanction order of $3,660 against Truong based on
the absence of new or different facts.
On June 6, in the
interim between the denial of the reconsideration motion and the hearing on the
second sanction request, Truong filed a notice of appeal, purporting to take
the appeal from “[a]n order or judgment under Code of Civil Procedure section
904.1 (a)(3)-(13),†but not otherwise specifying what he was appealing from.
again from an “order or judgment under Code of Civil Procedure section 904.1
(a)(3)-(13)†without further elaboration.
We consolidated the two appeals.
III. APPEALABILITY
A. The First Appeal, G047039
The March 27, 2012
minute order directing sanctions of $22,292.04 is appealable, all else being
equal. (See § 904.1, subd. (a)(12)
[appeals may be taken from orders “directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five thousand dollars
($5,000)â€].) But all else is not
equal. Just because an order is
appealable doesn’t mean a notice of appeal from it is necessarily
Here, the June 6, 2012 notice of appeal was filed more than 60 days
after the order challenged, namely the minute order dated March 27, 2012. (See Cal. Rules of Court, rule 8.104(a)(1)(A)
[litigant has 60 days after service of notice of entry of judgment to file
notice of appeal].)
The 60-day deadline
would be no problem for Truong if he
had filed a “valid†motion for reconsideration.
Rule 8.108(e) of the California Rules of Court gives litigants an extra
30 days to file their notice of appeal if they serve and file a “valid†motion
to reconsider under section 1008. Thus
the question of whether the June 6, 2012 notice of appeal was timely turns on
the question of whether the April 16, 2012 motion to reconsider was valid. (See Branner
v. Regents of University of California (2009) 175 Cal.App.4th 1043
1049-1050 [“Because Branner failed to file and serve a valid motion to
reconsider, rule 8.108(e) did not extend his time to appeal.â€].)
We
must conclude the motion to reconsider was not valid. The rule is that the validity of a motion for
relief meriting extra time to file a notice of appeal under rule 8.108 of the
California Rules of Court (such as a motion for new trial or reconsideration)
is tested by compliance with all procedural
requirements of the relief in question.
(See Branner,
1047.) Among those procedural
requirements is timeliness. (See
Advisory Com. com., 23 pt. 2 West’s Ann.Codes, Rules (2009 supp.) foll. rule
8.108, p. 84.)
Section
1008 gives an aggrieved litigant “10 days after service upon the party of
written notice of entry of the order.â€
Case law has established that a notice of ruling under section 1019.5
starts the time running for a motion for reconsideration. (See Advanced
Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388,
1392 [“We assume that the trial court adopted appellant’s arguments enunciated
in its opposition to the motion for reconsideration which stated that the
motion was untimely because the amended notice of ruling on demurrer and motion
to strike was served on October 12, 1994.
Hence, the motion for reconsideration should have been filed by October
22, 1994, ‘10 days after service of written notice of entry of the order.’
Therefore, the trial court’s denial of the motion for reconsideration was correct.â€].)
Indeed,
the whole purpose of section 1019.5 is to “start the time running†on a party’s
ability to “seek reconsideration.â€
(Rylaarsdam, et al., Cal. Practice Guide: Civil Procedure Before Trial
(The Rutter Group 2012) ¶ 9:320.1, p. 9(I)–122.) And in fact, Truong’s own civil case
information statement filed in this court acknowledges that March 28, 2012, the
date of the notice of ruling, was the date of the notice of entry of judgment
under rule 8.104.
Moreover,
as the Advanced Building Maintenance
opinion indicates, the 10 days under section 1008 do not come with an extra
five days for service by mail. But even
if they did, Truong was still a day late since his motion for reconsideration
was filed 16 days after the service of the notice of ruling, with the 15th day
falling on a Thursday.
So
we have no choice but to dismiss the appeal from the March 27, 2012 order.
B. The Second Appeal, G047151
The
second notice of appeal was filed on July 6, 2012, easily within 60 days of the
second sanction order made on June 26, 2012.
But the order of June 26, 2012 is simply not appealable. Under the
main statute governing what is appealable, section 904.1, sanction orders of
less than $5,000 are specifically not appealable unless the aggrieved party has
filed an extraordinary writ challenging the sanction, which Truong hasn’t. (The statute provides in subdivision
(b): “Sanction orders or judgments of
five thousand dollars ($5,000) or less against a party or an attorney for a
party may be reviewed on an appeal by that party after entry of final judgment
in the main action, or, at the discretion of the court of appeal, may be
reviewed upon petition for an extraordinary writ.â€].)
Truong
presents two arguments against dismissal given the nonappealability of the June
26 order, but those arguments are so disjointed as to defy paraphrase. We will merely note that Truong
reconsideration motion was an exercise of the constitutional right to petition
government under the anti-SLAPP statute (§ 425.16), thus – for reasons
never quite explained – his reconsideration motion was immune from any sanction
under any other statute. If
anti-SLAPP statute makes up a considerable portion of his briefing on the
merits as well), he is not persuasive because a motion for sanctions under
section 128.7 and a motion to dismiss for filing a SLAPP suit under section
425.16 are two different things, and here Nguyen never filed a motion to
dismiss Nu’s complaint under section 425.16.
So
we must dismiss the second appeal, from the June 26, 2012 order, as well.
The Motions for Appellate Sanctions
Appeal (G047039)
As we point out in the
companion appeal, motions for appellate sanctions are addressed to the
discretion of the appellate court (
2 (1986) 185 Cal.App.3d 1170, 1181-1182) in light of standards laid down in
In re Marriage of Flaherty,
against appellate sanctions. (See
We
reject the sanction request as to the first appeal for the same reason we do in
the companion appeal. Most
fundamentally, a number of items of evidence appear to contradict the tidy
narrative that Nu sued Nguyen for $70,000 that she had earlier used to buy an
interest in a condo in Vietnam. Nu
separate transfers of $45,000 and $25,000, that money did find its way to Nguyen’s Decima
Realty, Nu never did receive title to
the Vietnamese condo, and if the $70,000 was intended for use in
of California real property, then why didn’t Nu get at least
money? We further note that if the nature
of the Nu-to-Nguyen transaction was a loan,
Nguyen would certainly owe her money, plus interest. And if the transaction was an investment in a
profit making venture, it is counterintuitive that Decima Realty would manage
to lose all of it. So we are simply not confident the appeal was
frivolous.
2. Second
Appeal (G047151)
Truong’s
appeal from the denial of his reconsideration motion presents a different
matter. This one was truly dead on arrival.
The motion was (as explained above) filed too late and so not
“valid.†We see nothing in it to
indicate Truong had come into possession of any new facts, and the revelation
he had tried to dissuade his client to dismiss the case but she stubbornly
refused does that change that. But even
if it did, the order was under the requisite $5,000 to make the threshold level
of appealability.
The
question is – what should the sanction be?
The second appeal is so easily disposed of that we cannot say it has
caused this court much in the way of time and expense; the determination of the
untimeliness of the April 16 filing date of the reconsideration motion was
necessary to decide the first appeal, and Nguyen himself did not raise the
untimeliness of the reconsideration motion as a reason to dismiss the
request for supplemental briefing, so as to afford both sides an opportunity to
present their views on the topic before oral argument; Nguyen’s subsequent
supplemental brief confirmed what we already supposed.
Accordingly,
we impose only token monetary sanctions against attorney Truong in the amount
of $ 100, payable to this court
within 90 days of the finality of this decision.
IV. DISPOSITION
The appeals in both
G047039 and G047151 are dismissed. The motions
to impose sanctions on appeal in regard to G047039 is denied. The motion to impose sanctions on appeal in
regard to G047151 is granted; sanctions of $100 are to be paid by Truong to
this court within 90 days of the finality of this decision. Respondent Nguyen shall recover his costs on
appeal.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
name="_ftn1" title=""> [1] All statutory references in this
opinion are to the Code of Civil Procedure.
name="_ftn2" title=""> [2] We take judicial notice of this
court’s civil case information statement which does make it clear the June 6
notice of appeal was from the March 27, 2012 order granting sanctions pursuant
to section 128.7.
