Mark Tran vs. International Buddhist Cultural Heritage Foundation

Reply Other

Cal. Super. - 4th Dist.May 13, 2015

A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERI T. PHAM (SBN193383) tpham @ enensteinlaw.com ENENSTEIN RIBAKOFF LAVINA & PHAM 650 Town Center Drive, Suite 840 ELECTRONICALLY FILED Costa Mesa, CA 92626 Superior Court of California, Tel: 714-292-0262 Coun ty of Orange cl: - - Fax: 714-464-4770 01172017 at 11:52:00 PM . . . Clerk of the Superior Court Attorney for Defendants International Buddhist Cultural Heritage Found By e Clerk, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER MARK TRAN, an individual; TRANG TRAN, an | Case No: 30-2015-00787567-CU-MC-CJC individual; and ASIANA COMMUNICATIONS, } } INC., d/b/a VIET POWER TV, INC., a California | Assigned to Hon. Judge David Chaffee Corporation, Plaintiffs, REPLY IN SUPPORT OF MOTION v. FOR JUDGMENT NOTWITHSTANDING THE INTERNATIONAL BUDDHIST CULTURAL VERDICT, OR IN THE HERITAGE FOUNDATION a/k/a ALTERNATIVE, FOR NEW TRIAL INTERNATIONAL BUDDHIST CULTURAL OR REMITTITUR a/k/a CHUA DIEU NGU a/k/a CHUA DIEU PHAP a/k/a CHUA DIEU NGU VIETNAMESE | Date: February 3,2017 BUDDHIST TEMPLE a/k/a THE Time: 9:30 a.m. VIETNAMESE AMERICAN BUDDHIST d/b/a | Dept.: C20 IBC-TYV, a California non-profit corporation; TAN . NGOC HO a/k/a THICH VIEN LY, an Reservation #: 72504992 individual; NHA NGOC TUYET MAI a/k/a TUYET NHA, an individual; LONG NGUYEN, an individual; and DOES 1 through 50, inclusive, Defendants. INTERNATIONAL BUDDHIST CULTURAL HERITAGE FOUNDATION, a California non- profit corporation, Cross-Complainants V. MARK TRAN, an individual; TRANG TRAN, an individual; ASTANA COMMUNICATIONS, INC. d/b/a VIET POWER TV, INC., a California Corporation; NGUYEN HUU CHANH a/k/a TONY NGUYEN, and individual; GLOBAL IPTV, INC. a/k/a GLOBAL TV d/b/a GLOBAL TV LIVE, a California Corporation; and ROES 1 through 50, inclusive, Cross-Defendants. REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF REPLY After delaying more than four months before entering judgment in this matter, Plaintiffs delayed another two months before serving the notice of entry of judgment and have now filed an untimely opposition to Defendants’ motion for judgment notwithstanding the verdict or new trial or remittitur. Plaintiffs’ repeated pattern of delay should not be condoned and simply highlights the numerous issues and problems that arose during trial as a result of Plaintiffs’ dilatory tactics. Apart from the delay, the evidence simply did not support the verdict, and judgment notwithstanding the verdict should be entered in favor of Defendants or a new trial should be granted. IL. ARGUMENT A. Plaintiffs’ Opposition Is Untimely And Should Be Disregarded As a preliminary matter, the Court should disregard Plaintiffs’ opposition as it was untimely. Defendants’ moving papers were filed and served by overnight delivery on December 23,2016. Pursuant to Code of Civil Procedure § 659, any opposition was to be filed and served no later than January 4, 2017 (10 days plus 1 for overnight delivery). No opposition was filed with the Court or served upon counsel by that date. See Notice of Non-Opposition filed January 6, 2017. Plaintiffs’ opposition should therefore be disregarded and this motion should be granted. B. JNOYV or a New Trial Should be Granted 1. Plaintiffs’ Testimony Makes Clear There Was No Consideration In an effort to claim that there was consideration to support the alleged Management Agreement between Viet Power and IBCHF, Plaintiff refers to the testimony of Plaintiff Mark Tran in which Mr. Tran acknowledges that it was VNBC and not Viet Power that actually the broadcasting right for Sub-Channel 56.5. Plaintiffs apparently claim that because Ms. Tran owned 99% of VNBC and 90% of Viet Power, the purported termination of VNBC’s broadcast REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rights was therefore somehow consideration by Viet Power. (Opposition at 4:1-5) Plaintiffs’ argument is without merit. It is well-established that a corporation is a legal entity separate and distinct from its shareholders. Kohl v. Lilienthal, 81 Cal. 378 (1889). Moreover, property and rights held by a corporation belong to the corporation and not the shareholder: “The bare fact that a man holds shares in the capital stock' of a corporation gives him no legal title to the property of the corporation. That remains in the corporation and not in the shareholders.” Id. Thus, the consideration, if any, belonged to VNBC and not Ms. Tran, and certainly not another company in which she owned a partial interest. Plaintiffs retained the benefits and protections of incorporating, and are therefore bound by those legal distinctions. They cannot simply pick and choose when to observe corporate formalities or not. Moreover, as the testimony confirms, neither VNBC, Ms. Tran, nor Viet Power transferred or assigned any rights to IBCHF -- VNBC, at most, simply terminated its agreement with KDOC. Thus, there is no evidence of any consideration by Viet Power and the verdict should be vacated. 2. Plaintiffs’ Fraud Claim Is Unenforceable Recognizing that their contract claims are unsupported, Plaintiffs now claim that the gravamen of their complaint was really a claim of fraud and that the false promise was that “where ever [Mr. Ly] went,” the Plaintiffs “would be alongside him.” Apart from the perpetuity problem discussed in the moving papers, this argument suffers from multiple problems in that first, nowhere in their Verified Third Amended Complaint do Plaintiffs make this claim. Rather, the Verified Third Amended Complaint states specifically: Defendants TAN and IBC intentionally and affirmatively misrepresented to Plaintiffs that Plaintiffs would continue to manage and operate Channel 56.5, and would receive operating funds and compensation for their efforts as part of a long term business relationship.” (TAC at 949). This verified allegation constitutes a judicial admission, and Plaintiffs are precluded from alleging otherwise. “A judicial admission is a party’s unequivocal concession of the truth of a matter, and removes the matter as an issue in the case. [Citations.]” Gelfo v. Lockheed Martin Corp., 140 Cal. App.4th 34, 48. REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2006). “Judicial admissions may be made in a pleading . . . . [Citations.] Facts established by pleadings as judicial admissions © “are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her.” [Citations.] Indeed, it would be highly prejudicial to Defendants to allow Plaintiffs to changes those allegations now after trial has already been completed. Second, the alleged promise for Plaintiffs to be “alongside him wherever he went” is not sufficiently definite to enforce. As discussed in the moving papers, the issue of whether a contract is sufficiently definite is a question of law for the court. Ladas v. California State Automobile Assn., 19 Cal.App.4th 761, 770, fn. 2 (1993); Ersa Grae Corp. v. Fluor Corp., 1 Cal.App.4th 613, 623 (1991). Here, Plaintiff’s new theory that the alleged promise was that Plaintiffs would be “alongside” Mr Ly is wholly ambiguous and uncertain cannot be enforced. Accordingly, the Judgment should be set aside for this reason, as well. 3. There Was No Evidence To Support A “Long-Term” Relationship Or Any Duration Although Plaintiffs alleged in their complaint that there was a promise of a “long-term” relationship, Plaintiffs failed to present any evidence at trial or their opposition of any reasonable duration for the Management Agreement. In fact, the testimony cited by Plaintiffs in their opposition confirms that the relationship was tied specifically to Sub-Channel 56.5 and could be terminated if Defendants no longer operated the channel: Q. WERE YOU PROMISED BY MR. LY A LONG-TERM BUSINESS RELATIONSHIP? A. YES. THE MASTER SAID AS LONG AS HE IS STILL AROUND AND THE CHANNEL IS STILL AROUND, WE WILL BE CLOSELY TIED TOGETHER. HAVE SIGNED IT. REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Testimony of Trang Tran; Reporter's Transcript 570:25-26-571:1-5. Because Plaintiff failed to present any evidence of a reasonable duration, they failed to carry their burden and the Judgment should be vacated. 4. The Was No Agency Coupled With A Property Interest As Plaintiffs acknowledge, California agency law grants a principal the power to revoke an agency at any time, unless that agency is coupled with an interest. See Civ. Code §2356. As Plaintiffs acknowledge, a monetary interest is insufficient to divest a principal of this power. Rather, the interest must be an actual ownership or property interest. “[W ]here no specific, present property interest has been found, the courts have consistently held the agency revocable, notwithstanding the fact that the agent gave valuable consideration, and in spite of express declarations in the contract that it was coupled with an interest and irrevocable.” Capital Nat. Bk. of Sacramento v. Stoll, 220 Cal. 260, 265 (1934) (emphasis added). The fact that Plaintiffs may have had a “long-term” agency relationship here does not transform the agency agreement here to one of property or ownership. Accordingly, Plaintiffs’ argument here must also fail. 5. There Evidence Did Not Support the Damages Awarded Despite two jurors declaring explicitly under oath that the damages awarded was based on an improper average of amounts suggested by the jurors, Plaintiffs claim that the amount was based on the purported investment by Plaintiffs. Although Plaintiffs submit the declaration of one juror, the information provided by that juror does not comport with the evidence or the Verdict. According to the Declaration of Christine Yassa, the jury awarded $350,000 to Plaintiff Trang Tran, even though Ms. Tran testified that she invested $300,000 to purchase equipment for her studio. The jury then awarded another $35,000 to Mark Tran for his alleged 10% interest in Viet Power, although they apparently did not deduct the amount from Ms. Tran’s portion, thus giving the equipment a value of $385,000, which is not supported anywhere in the evidence. Moreover, Plaintiffs presented no evidence to support this bald assertion, which was simply thrown in at trial after the Court rejected any evidence of Plaintiffs’ purported offer from REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vietnam. More importantly, the value of Plaintiffs’ equipment could not be the basis of any damage award as Plaintiffs did not present any evidence that they lost that equipment. Indeed, the evidence presented was that Defendants built their own studio and purchased their own equipment. There was no evidence that Defendants took Plaintiffs’ equipment, or any loss in value or depreciation of Plaintiffs’ equipment. See Declaration of David Rager at 7. Furthermore, any implication by Plaintiffs that counsel for Defendants somehow engaged in any misconduct by speaking to jurors after the trial is simply false and highly offensive. As the declaration of David Rager makes clear, Mr. Rager reached out to Defendants’ counsel after the trial because he was extremely disturbed by the issues raised during jury deliberations and the results. Rager Decl. at §3. Defendants’ counsel did not solicit Mr. Rager for his statement initially. See also Supplemental Declaration of Teri T. Pham, Exhibit A. The accusations by Ms. Yassa are therefore improper and uncalled for. At no time did counsel for defendants attempt to solicit or request any statement from Ms. Yassa or any other juror right after the trial. Nor did counsel harass or badger any juror. Ms. Yassa stayed after the trial, as did several other jurors, to answer questions of her own accord. See Supplemental Pham Decl. 6. The Problems With the Verdict Forms Were Caused By Plaintiffs As Plaintiffs’ counsel’s own declarations make clear, the disputes and problems with the proposed Special Verdict Forms were caused by Plaintiffs’ delays and resulted in prejudice to Defendants. In particular, as of 11:15 pm on Thursday, June 16, 2016, Plaintiffs’ counsel had still not circulated the final instructions and verdict forms so that all counsel could review and edit. See Exhibit A to Jamil Kassimali Declaration. Plaintiffs’ proposed final verdict forms were not circulated until Friday, June 17, 2017, whereupon after reviewing, Defendants determined there were errors in that, among other things, there were duplicative and extraneous verdict forms and they were missing questions to address the affirmative defenses. However, as Plaintiffs acknowledge, they refused to correct those errors, resulting in Defendants having to submit separate proposed verdict forms on Monday, June 20, 2017. As discussed in the moving papers, Defendants should not be punished as a result of Plaintiffs’ failure to comply with their REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR A N Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obligations and a new trial should be granted to allow Defendants to submit proper Special Verdict Forms. III. CONCLUSION For all the foregoing reasons, Defendants IBCHF and Mr. Ly respectfully request that the Court grant their Motion for Judgment Notwithstanding the Verdict, or alternatively, grant a new trial or remittitur. Defendants further request that the Court enter a stay of execution pending a ruling on this motion and until 10 days after expiration of the time to appeal. Dated: January 11, 2017 ENENSTEIN RIBAKOFF LaVINA & PHAM n oN / \ / f \ A ¥) Bid Oe Teri T. Pham Attorney for Defendants International Buddhist Cultural Heritage Foundation and Tan Ngoc Ho REPLY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL OR REMITTITUR