Stacy Trang Anh Bui vs. Trinh Minh Thi Pham

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.September 7, 2016

T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jason D. Annigian, Esq. (State Bar No. 208876) THE LAW OFFICE OF JASON D. ANNIGIAN, APC 114 N. Indian Hill Boulevard, Suite E Claremont, California 91711 Tel: (909) 981-0475 Fax: (909) 981-0113 Attorney for Defendant Trinh Minh Thi Pham SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER STACY TRANG ANH BUI, an individual, Plaintiff, VS. TRINH MINH THI PHAM,an individual; TINA TRANG NGUYEN,an individual; attorney LAN QUOC NGUYEN, DUNG TIEN TRAN,an individual; and DOES 1 through 30, Defendants. Case No.: 30-2016-00872697-CU-FR-CJC [Consolidated with 30-2016-00873755-CU-BC-CJC] ASSIGNED FOR ALL PURPOSES TO Honorable John C. Gastelum Department C13 Action Filed: September 1, 2016 Trial Date: None Set DEFENDANT TRINH MINH THI PHAM’S NOTICE OF DEMURRER AND DEMURRER TO SECOND AMENDED COMPLAINT; DECLARATION OF JASON D. ANNIGIAN, ESQ. Date: May 9, 2017 Time: 2:00 p.m. Department C13 [Hearing Res. No. 72534767] DEMURRER TO SECOND AMENDED COMPLAINT T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 9, 2017 at 2:00 p.m. in Department C13 of the above-entitled court located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendant Trinh Minh Thi Pham (“Defendant”), will and hereby does demur to the First Cause of Action in the Second Amended Complaint of Plaintiff Stacy Trang Anh Bui (“Plaintiff”), generally stated on the grounds that the cause of action fails to state a claim and/or is uncertain. The Demurrer is brought pursuant to Code of Civil Procedure sections 430.10, subdivision (e) and (f) and 430.30, subdivision (a), 430.50, subdivision (a) and is supported by this Notice, the Demurrer, the Memorandum of Points and Authorities, those matters of which the Court may or must take judicial notice, and any other evidence presented and properly received by the Court at the time of the hearing. THE LAW OFFICE OF JASON D. ANNIGIAN, APC Dated: February 16, 2017 By: nD. Annie=> Attorney for Defendant, Trinh Minh Thi Pham -1- DEMURRER TO SECOND AMENDED COMPLAINT T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER Defendant Trinh Minh Thi Pham (“Defendant”) generally and specially demurs to the first cause of action for breach of contract in Plaintiff Stacy Trang Anh Bui’s (“Plaintiff”) Second Amended Complaint on the following grounds: I. Plaintiff’s First Cause of Action for “Breach of Contract” fails to state sufficient facts to constitute a cause of action against Defendant. [Code of Civ. Proc., §430.10, subd. (e).] 2. Plaintiff’s First Cause of Action for “Breach of Contract” is, in the alternative, uncertain. [Code of Civ. Proc., §430.10, subd. (f).] LAW OFFICE OF JASON D. ANNIGIAN, APC By: Dated: February 16, 2017 n D. Annigian Pony forat Trinh Minh Thi Pham 2 DEMURRER TO SECOND AMENDED COMPLAINT T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C A N n n 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 L SUMMARY OF ARGUMENT In her Second Amended Complaint, Plaintiff Stacy Trang Anh Bui (“Plaintiff”) sues Defendant Trinh Minh Thi Pham (“Defendant”) for breach of contract for allegedly not paying $350,000 pursuant to a Residential Purchase Agreement. These allegations are directly contradicted by Exhibit 2 to the Second Amended Complaint, which states: “Ms. Trinh Pham had deposited the full payment of $350,000 on October 25, 2015....” Because Plaintiff’s allegations are directly contradicted by an exhibit to the Second Amended Complaint, the Court should sustain the demurrer without leave to amend. IL. PROCEDURAL HISTORY On January 4, 2017, the Court sustained Defendant’s demurrer to the breach of contract cause of action on the grounds that the contract referenced in the complaint was not attached and the terms were not set out verbatim. The Court also sustained the demurrer on the grounds that the cause of action was uncertain. The Court granted Plaintiff 10 days leave to amend. On January 10, 2017, Plaintiff filed a Second Amended Complaint that attached the Residential Purchase Agreement (Exhibit 1) and a document attached as Exhibit 2 which is labeled “Promissory Note.” III. LEGAL ARGUMENT a. Standard on Demurrer Code of Civil Procedure Section 430.10 establishes the grounds upon which a party may object to a pleading by demurrer. Grounds include, but are not limited to: *“(e) the pleading does notstate facts sufficient to constitute a cause of action. . . ” and “(f) the pleading is uncertain . . .” A demurrer challenges defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Code Civ. Proc. §§430.30, 430.50; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. The “face of the pleading” includes exhibits to the complaint. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4™ 500, 505. 3. DEMURRER TO SECOND AMENDED COMPLAINT T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Plaintiff’s Breach of Contract Claim fails as a matter of law Plaintiff has only alleged one cause of action for breach of contract against Defendant. Plaintiff has alleged: “Defendant Pham did not pay Plaintiff $350,000, the agreed purchase price stated on the RPA.” (SAC, 937.) The foregoing allegations are completely contradicted by the notarized “Promissory Note” signed by Plaintiff, which states: “Ms. Trinh Pham had deposited the full payment of $350,000 on October 25, 2015...” (SAC, Ex. 2.) Because Exhibit 2 (which is an admission by Plaintiff) directly contradicts the allegations in Paragraph 37, Plaintiff will never be able to prove a breach of the Residential Purchase Agreement. To the extent the factual allegations conflict with the content of the exhibits to the complaint, this Court is to rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits. Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447 (“If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence”); SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83 (“If the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits”); Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 785-786 (“‘The general rule is that when a written instrument which is the foundation of a cause of action or defense is attached to a pleading as an exhibit and incorporated into it by proper reference, the court may, upon demurrer, examine the exhibit and treat the pleader’s allegations ofits legal effect as surplusage.’ [Citation.]”); see also Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1314; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505; George v. Automobile Club of Southern Calif. (2011) 201 Cal.App.4th 1112, 1130. As such, the claim fails as a matter of law. 4- DEMURRER TO SECOND AMENDED COMPLAINT T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C ~ N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION Defendant respectfully requests that the Court sustain each of the demurrers without leave to amend. THE LAW OFFICE OF JASON D. ANNIGIAN, APC Dated: February 16, 2017 By: 2 = : Jasop DJ. Annigian x Attdrney for Defendant, Trinh Minh Thi Pham -5- DEMURRER TO SECOND AMENDED COMPLAINT T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JASON D. ANNIGIAN I, Jason D. Annigian, declare: I. I am counsel for Defendant Trinh Minh Thi Pham in this action. I have personal knowledge of the matters set forth herein, and if called upon to testify thereto, I could and would competently do so. 2. I submit this declaration in support of Defendant’s Demurrer to Second Amended Complaint pursuant to California Code of Civil Procedure § 430.41(a)(3) in order to describe the meet and confer efforts of the parties in connection with this demurrer. As set forth below, the parties undertook a good faith meet and confer to avoid motion practice, but were not able to reach an agreement. 3. On January 18, 2017, I sent a detailed email to counsel for Plaintiff, Dat T. Dang, regarding the deficiencies in Plaintiff’s first cause of action for breach of contract alleged against my client and the relevant authority. 4. Mr. Dang was unavailable to respond before the responsive pleading was due, so I filed a Declaration on February 3, 2017 pursuant to Code of Civil Procedure section 430.41(a)(2), which extended the deadline to file a responsive pleading. 5. On February 15, 2017, I received a letter from Mr. Dang in response to my January 18 letter. Mr. Dang responded to the issues I raised and concluded the letter by stating: “There was no conflict of factual allegation.” Attached as Exhibit 1 is a true and correct copy of Mr. Dang’s letter. 6. Despite the efforts to avoid this demurrer, the parties were unable to reach an agreement or resolve the objections raised by Defendant. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 16, 2017 at Claremont, California. JugAmisnTE EXHIBIT 1 To: Page 1 of 3 17147847885 From: Dat Dang 2017-02-16 00:39:51 (GMT) FAX COVER SHEET TO COMPANY FAXNUMBER 19099810113 FROM Dat Dang DATE 2017-02-16 00:39:33 GMT RE Meet and Conferletter COVER MESSAGE WWW. MYFAX.COM To: Page20of3 2017-02-16 00:39:51 (GMT) 17147847885 From: Dat Dang LAWOFFICES OF DAT T. DANG Dat T. Dang, Esq. 32 Valente-Irvine, CA 92602 657-266-0247* 714-784-7885 Fax OfCounsels: Email Chotoillan@@Yahoo.com Barry A. Bisson, Esq. Victor Hobbs, Esq. Dean R. Kitano, Esq. 02/15/2017 VIA FACSIMILE: 1-909-981-0113 Jason D. Annigian Law Office of Jason D. Annigian, APC 114 N. Indian Hill Blvd., Suite E Claremont, CA 91711 Re: Meet and Confer letter Stacy Trang Anh Bui v. Trinh Minh Thi Pham, et al SCOC Case No. 30-2016-00873755 Dear Attorney Annigian, This letter serves as a meet and confer and also a response to yourletter dated 1/18/2017. On the face ofmy 2™ Amended Complaint, the facts have shown that your client paid to several persons the purchase price which meant your client did not pay my client $350,000.00, the contract price. The Promissory Note which stated:” Ms. Trinh had deposited the full payment of $350,000.00 On October 25, 2015” was an incorrect statement because your client never deposited $350,000.00 on October 25, 2015. The Promissory Note was prepared by your client’s real estate agent and my client signed it under undue influence which was void and mvalid. There was no conflict of factual allegation. To: Page 3of3 2017-02-16 00:39:51 (GMT) 17147847885 From: Dat Dang Also, I agree to extend 30 days for your clientto file a Demurrer to my 2"¢ Amended Complaint, Very truly yours, Dat T. Dang, Esq. T H E L A W O F F I C E O F J A S O N D . A N N I G I A N , A P C F N ~ N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am over the age of 18 and not a party to the within action; my business address is 114 N. Indian Hill Blvd., Suite E, Claremont, CA 91711. On February 16, 2017, I served the foregoing document(s) described as: DEFENDANT TRINH MINH THI PHAM’S NOTICE OF DEMURRER AND DEMURRER TO SECOND AMENDED COMPLAINT; DECLARATION OF JASON D. ANNIGIAN, ESQ. on all interested parties in this action, as follows: Dat T. Dang, Esq. Edward S. Beneville Anthony Case, Esq. 32 Valente 9141 Bolsa Avenue, #303 Farmer, Case & Fedor Irvine, CA 92602 Westminster, CA 92683 535 Anton Blvd., Ste 300 Attorney for Plaintiff, Stacy Attorney for Defendants Costa Mesa, CA 92626 Trang Anh Bui Lan Quoc Nguyen Attorneys for Defendant, Superior Real Estate Group, Inc. [1] ELECTRONIC TRANSMISSION: Based on court order -or- agreement ofthe parties, I caused the foregoing documents to be served electronically to the parties’ email address(es) of record as listed above. 1] FACSIMILE TRANSMISSION: Based on court order -or- agreement of the parties, I caused the foregoing documents to be served by transmitting via facsimile machine to the parties’ facsimile number(s) listed above. The facsimile machine I used complied with California Rules of Court, Rule 2003, and the transmission was reported as complete, without error by a transmission report issued by the transmitting facsimile machine immediately upon completion of transmittal. DX] BY PLACING ] the original [X] a true copy thereof enclosed in sealed envelope(s) to the parties listed above and transmitting via: x U.S. MAIL: I caused such envelope(s) to be delivered byfirst-class mail. Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid at Claremont, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. [] OVERNIGHT COURIER: I caused such envelope(s) to be delivered by overnight delivery by close of business of the next business day. I am “readily familiar” with the firm’s practice of collection and processing correspondence for overnight courier. It is deposited with the overnight courier or at a location authorized to receive parcels on behalf of the overnight carrier on the same day, fully prepaid at Claremont, California in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 16, 2017, in the City of Claremont, County of Los Angeles, California. ~ LourdesVillalpandy