Memorandum Points and Authorities

Cal. Super. - 6th Dist.March 30, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/23/2021 4:04 PM Reviewed By: Desiree Alfaro Case #21CV381443 Envelope: 7119340 21CV381443 Santa Clara - Civil Desiree Alfaro 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,SA, LAW OFFICES VU.S.A. LAW OFFICES, APC MICHAEL CHINH VU, saw 178148 142 EAST MISSION STREET SAN JOSE. CA 951 12 TELEPHONE: (408) 288-7400 FACSIMILE: (408) 288-7798 EMAIL: MICHAELVU@VUSALAW.COM Attorney for Plaintiff TAI TAN TRAN IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION TAI TAN TRAN, ) CASE NO. 21CV381443 Plaintiff ) ) PLAINTIFF'S MEMORANDUM OF Versus ) POINTS AND AUTHORITIES IN ) SUPPORT OF MOTION FOR CHANGE ) OF VENUE FROM SANTA CLARA ) COUNTY TO SANTA CRUZ COUNTY THINH VU aka THINH NGOC VU, HONG- ) CUC TRAN, SAKURA TEPPANYAKI AND ) Date: SUSHI, LLC, and DOES 1 TO 10, ) Time: Defendants ) Judge: Hon. Drew Takaichi ) Dept: 2 Plaintiff respectfully submits his memorandum of points and authorities in support of his motion for change 0f venue from Santa Clara County t0 Santa Cruz County as follows: I STATEMENT OF FACTS In late 2015, Plaintiff and Defendants entered into an oral agreement in which Plaintiff agreed t0 lend to Defendants the sum 0f $450,000 for their investment in Sakura TeppanyakiM Plaintiff‘s Memorandum of Points and Authorities in Support of Motion Page 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Sushi, LLC. Defendants promised to pay Plaintiff interest at the rate 0f simple 5% per annum. Defendants also promised to repay Plaintiff the principal amount of the loan and the accrued interest within five years from the date of receipt 0f their last amount of the loan, at which time Defendants would pay Plaintiff the sum 0f $562,500, of which $450,000 is for principal loan amount and $1 12,500 in accrued interest. Defendant Vu is a brother of Thanh Vu, and Thanh Vu and his wife Hong-Nhung Tran formed, owned, and operated Sakura Teppanyaki and Sushi, LLC. In order to help his brother to qualify for certain immigration benefits and reliefs from removal, Thanh Vu and his Wife agreed to help by allowing Defendant Vu and his Wife Defendant Tran to share a portion 0f the ownership interest in Sakura Teppanyaki and Sushi, LLC. In late 2015 and early 2016, Plaintiff and his father were reluctant t0 lend the money t0 Defendants, but Thanh Vu and Hong-Nhung Tran, who acted on behalf of Sakura Teppanyaki and Sushi, LLC, agreed t0 hold Defendants Vu and Tran's share in said company to ensure that Plaintiff and his father would not lose the loan t0 Defendants Vu and Tran. Said company, through their principals, orally agreed t0 guaranty the loan should Defendants Vu and Tran fail to pay the principal amount of $450,000 plus the accrued interest. The agreement between Plaintiff and Defendants Vu and Tran, and the agreement between Plaintiff and Defendant Sakura, were both entered into in Santa Cruz County. In late 2015 and early 2016, Plaintiff caused to wire-transfer a total of $450,000 from his father Sinh Tran's bank accounts into Defendants' Bank of America accounts. Defendants did used part of the $450,000 t0 invest into the business known as Sakura Teppanyaki and Sushi, LLC. Plaintiff‘s Memorandum of Points and Authorities in Support 0f Motion Page 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In December 2020 and January 2021, Plaintiff searched for Defendants to demand the payment of $562,500 as previously agreed. Plaintiff learned that Defendants had sold their home in Carmel, California. Plaintiff has recently learned that Defendants Vu and Tran have moved to and established their residence in the County of San Diego. As of the date 0f this complaint, the amount 0f $562,500 is immediately due and payable. Defendants Vu and Tran have not made any contact with Plaintiff to arrange for the repayment of the loan. Defendant Sakura is a California limited liability company with its headquarter situated in the County of Santa Cruz. The matter was supposedly filed in Monterey. However, Monterey County is no longer the proper venue in this matter. Either Santa Cruz or San Diego County is the proper venue in this matter. Therefore, Plaintiff wishes to request the Court to change venue from Santa Clara County to Santa Cruz County. II LEGAL ARGUMENT A. THE COURT IS STATUTORILY EMPOWERED TO DETERMINE THE QUESTION OF VENUE IN A CIVIL ACTION: Section 396b(a) of the Code 0f Civil Procedure states “if an action or proceeding is commenced in a court having jurisdiction 0f the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he 0r she answers, demurs, or moves to strike, 0r, at his or her option, Without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, 0f a copy of those papers. Plaintiff‘s Memorandum of Points and Authorities in Support of Motion Page 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.” When it appears on the face of the pleading that the county 0f residence of defendant(s) is proper, the court has to exercise its discretion to transfer the action to the county of defendants’ residence. Court must allow change of venue to defendant's residence, absent counter showing, if answer is not filed and moving papers are proper. James Rolph & Co. v. Krueger (1930) 105 Cal.App. 35, 286 P. 1060. B. A CAUSE OF ACTION FOR BREACH OF CONTRACT CAN ALSO BE TRIABLE IN THE COUNTY OF DEFENDANT’S RESIDENCE OR WHERE THE CONTRACTUAL OFFER WAS ACCEPTED: Actions on contract, except as provided by this section, are personal actions triable in the county of defendant's residence. Erwin v. Cee-Tee Const. Co. (1953) 250 P.2d 287; Claycomb V. Caronna (1952) 248 P.2d 779, 113 Cal.App.2d 561; Nanny V. Ruby Lighting C_or_p. (1952) 239 P.2d 885, 108 Ca1.App.2d 856; Goossen v. Clifton (1946) 170 P.2d 104, 75 Ca1.App.2d 44. Subject to certain well defined statutory exceptions, a contract action, express or implied, is personal in nature, and therefore generally triable in county 0f defendant's residence. Mathews Convever Co. West Coast v. Powell (1958) 159 Cal.App.2d 489, 324 P.2d 6. However, the Court has also held that the place where contract was in fact made is proper county for commencement 0f action thereon. Credit Bureau 0f Orange V. Clark (1950) 98 Cal.App.2d 479, 220 P.2d 596. Venue of an action arising out of a contract should be laid in county in Which obligation is incurred, unless there is a special contract in writing to the contrary, even though obligation is t0 be or may be performed in different counties. Bloom V. Camenter (1946) 74 Cal.App.2d 790, 169 P.2d 388. When a case is founded 0n a contractual Plaintiff‘s Memorandum 0f Points and Authorities in Support of Motion Page 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 obligation, venue is proper Where the contract was in fact entered into. K.R.L. Partnership V. Superior Court (2004) 15 Cal.Rptr.3d 517, 120 Cal.App.4th 490. In this matter, based on the first-amended complaint, there are two separate sets of defendants in this matter. Defendants Vu and Tran are now residents of San Diego County, and the Defendant Sakura's headquarter has always been in Santa Cruz County. Moreover, the agreements between Plaintiff and Defendants Vu and Tran and between Plaintiff and Defendant Sakura were entered into in Santa Cruz County and to be performed in Santa Cruz County. As to the constructive trust, "a constructive trust is an equitable remedy, not a cause 0f action in and of itself, which can be imposed against one who wrongfully detains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act." Civil Code sections 2223 and 2224. Habitat Trust for Wildlife, Inc. v. CitV of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332; PCO. Inc. v. Christensen, Miller, Fink, Jacobs, Glaser Weil and Shapiro, LLP (2007) 150 Cal.App.4th 384, 398; M_ei§ter__V.I\/Lcn_s_iggg (2014) 230 Cal.App.4th 381, 399. Therefore, it should not be bearing on the issue 0f venue in this matter. For the reasons stated, it is respectfully requested that Plaintiffs motion for change of venue from Santa Clara County t0 Santa Cruz County be granted as requested. Respectfully submitted, VU.S.A. LAW OFFICES, APC. wafwwflifwg By: MICHAEL CHINH VU Attorney for Plaintiff TAI TAN TRAN Dated: August 06, 2021 Plaintiff’s Memorandum of Points and Authorities in Support ofMotion Page 5