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Nguyen v. Tran

Jul 24, 2017
G053482 (Cal. Ct. App. Jul. 24, 2017)




BRIAN NGUYEN et al., Plaintiffs and Respondents, v. KEVIN TRAN et al., Defendants and Appellants.

Kenneth Reed; Kevin Tran and Linh Tran, in pro. per., for Defendants and Appellants. Russo & Duckworth, J. Scott Russo and David G. Duckworth for Plaintiffs and Respondents.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00762681) OPINION Appeal from an order of the Superior Court of Orange County, Walter P. Schwarm, Judge. Appeal dismissed in part. Order affirmed. Sanctions motion granted. Kenneth Reed; Kevin Tran and Linh Tran, in pro. per., for Defendants and Appellants. Russo & Duckworth, J. Scott Russo and David G. Duckworth for Plaintiffs and Respondents.

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Kevin Tran and Linh Tran appeal from the trial court's order granting Brian and Khanh Nguyen's motion to confirm an arbitrator's award. The arbitration resolved a dispute arising from a settlement agreement that unwound an investment and real estate transaction between the Nguyens and multiple parties, including the Trans, Pegasus Investment Group, LLC (Pegasus), and Shelley Investment, LLC (Shelley). As we explain, we dismiss Linh Tran's appeal for lack of standing because the Nguyens did not seek or obtain an arbitration ruling against her. Kevin Tran forfeited the five issues he now attempts to raise for the first time on appeal because he did not assert them in his opposition to the Nguyens' motion to confirm the arbitration award. We therefore affirm the trial court's order granting the Nguyens' motion to confirm the award. We also grant the Nguyens' motion on appeal for $1,275 in sanctions for the Trans' failure to follow the rules of appellate procedure.



The Trans have "egregiously violated the rule requiring specific page citations" to the record to support their appeal. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166-167.) Indeed, they fail to provide any record citations in their account of the underlying facts and litigation history. An appellant's opening brief must "provide a summary of the facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(a)(2)(C), italics added.) All appellate briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record." (Id., rule 8.204(a)(1)(C).) "'The appellate court is not required to search the record on its own seeking error.' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Consequently, failure to support an appellate challenge with the necessary record citations forfeits the claim. (Ibid.) This is particularly true where, as here in the Trans' brief and contrary to the standard of review, any semblance of a summary is "one-sided." (Ibid.) An appellate challenge "without a fair statement of the evidence" is "entitled to no consideration." (Ibid.) These principles apply with equal force to self-represented appellants. (Id. at pp. 1246-1247.)

Nevertheless, for the sake of completeness, we briefly summarize the relevant proceedings below. In a second amended complaint, the Nguyens sued the Trans and a host of other defendants, including entities they claimed were merely shell companies the Trans and an accomplice formed to perpetrate an investment scheme. The Nguyens' complaint asserted causes of action for breach of contract, "fraud/conspiracy and alter ego liability," and "restitution after rescission." Reduced to essentials, the Nguyens alleged the Trans breached the terms of their investment agreement and fraudulently induced them to convey their interest in an eight-unit Garden Grove apartment complex (the parcel) as the price of admission to invest in several sham real estate development projects.

The parties entered a written settlement agreement in September 2015. Under the agreement, the parties executed a mutual release disclaiming any admission of liability, the defendants (including the various entities) agreed to execute and submit to an escrow account a quitclaim deed for the parcel, and the Nguyens agreed to deposit $40,000 into the escrow account, to be released to Pegasus at the close of escrow. The terms of the settlement agreement acknowledged Pegasus previously had given the Nguyens $105,000 "[a]s an inducement to obtain the Property" (i.e., the parcel), and that at the outset of their lawsuit the Nguyens had deposited that amount with the court through the interpleader procedure, but those funds "have since been returned to the Plaintiffs." The settlement agreement nevertheless required the Nguyens to deposit only $40,000 in the escrow.

The settlement agreement also provided for private arbitration of any dispute involving the agreement. Specifically, the parties agreed that "[a]ny disagreement, claim, demand, controversy or dispute that arises in any way relating to the Agreement and the performance or any breach thereof by the Parties, shall be brought before JAMS as a binding arbitration . . . ." (Italics added.)

In October 2015, the Nguyens demanded arbitration, which a JAMS arbitrator conducted at a hearing in February 2016. The arbitrator's final amended award, issued in late February 2016, explained that the settlement agreement required "Shelley Investment LLC, of which Mr. Tran is the managing member and sole owner, to deed a certain parcel to the Nguyens in exchange for the Nguyens' payment of $40,000," but after the Nguyens deposited the funds in escrow, "Tran and Shelley reneged on the agreement in an email to escrow stating 'Just cancel everything things [sic].'" (Original brackets in award.) The arbitrator observed in his findings, "They continue to refuse to allow the escrow to close, claiming they signed the [settlement] agreement under duress."

The arbitrator expressly rejected this claim. The final amended award specified: "Mr. Tran's protestations of duress are not supported by the evidence. The only testimony offered was Mrs. Tran's description of a verbal conflict between [her] and Mrs. Nguyen, which caused the Trans anxiety and embarrassment. Their prior attorney, Mr. Krongold, testified that while Mr. Tran's position was not particularly favorable in the underlying litigation, neither Mr. Tran nor Shelley (in the form of Mr. Tran) was forced to sign the settlement. [¶] The Arbitrator finds neither Mr. Tran nor Shelley were under duress when signing the [settlement] agreement. It is a binding contract. Tran and Shelley are in default in frustrating the closing." The arbitrator therefore entered an award in the Nguyens' favor, including deductions from the $40,000 in escrow of approximately $3,400 for a mortgage payment the Trans failed to pay on the parcel, about $4,700 in arbitration costs, and $8,200 in attorney fees for the Nguyens.

After the arbitrator conducted the arbitration hearing, but before he entered the award, the Trans filed in the trial court a one-page preprinted Judicial Council form pertinent to court-annexed alternative dispute resolution (Form ADR-102), entitled, "Request for Trial De Novo After Judicial Arbitration." In filing the bare form, the Trans did not specify any grounds to vacate or correct the arbitration award, which had not been entered.

After the arbitrator issued his final ruling, the Nguyens filed in the trial court a motion to confirm the award. The Trans filed a brief written opposition, asserting only that the settlement agreement was void "because consent [to enter the Settlement Agreement] was given under duress."

The trial court held a hearing in April 2016 on the Nguyens' motion to confirm the arbitration award, but the Trans do not include on appeal a transcript of the hearing. The court noted in its minute order that the arbitrator in his award found the "defense of duress was not supported by the evidence and the Settlement Agreement was valid and binding on the parties." The court entered a final order confirming the arbitration award, and the Trans now appeal.



The Trans contend the trial court erred by confirming the arbitration award. Preliminarily, the Nguyens argue Linh Tran does not have standing to challenge the court's order because they did not name her as a party in their JAMS request for arbitration, nor did the arbitrator require her to appear as a party, and the arbitrator did not enter the arbitration award against her. Instead, Linh Tran simply testified as a witness at the arbitration.

Standing is a jurisdictional prerequisite for appeal (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947), but Linh Tran does not address it in the Trans' briefing. Only parties "aggrieved" by a final appealable judgment or order have standing to bring an appeal. (Code Civ. Proc., § 902.) "Without a showing that the party's personal rights are affected by a ruling, the party does not establish standing." (In re J.T. (2011) 195 Cal.App.4th 707, 717.)

Here, the arbitrator's award did not name Linh Tran in its caption, required nothing of her, and indeed made no mention of her in the disposition, which awarded the Nguyens "judgment against Kevin Tran aka Tuan Quoc Tran and Shelley Investment LLC for the following . . . ," and thereafter enumerated several items of relief, none of which involved Linh Tran. In other words, in seeking and engaging in the arbitration proceedings, the Nguyens did not assert Linh Tran had in any way failed to abide by the Settlement Agreement. The arbitrator therefore did not render a decision awarding any damages against her, nor requiring her or preventing her from engaging in any conduct. Because she was not aggrieved by the arbitrator's ruling and therefore lacks standing to challenge it, we dismiss her from the appeal. The Trans do not make separate arguments on appeal, submitting joint opening and reply briefs. Because only Kevin Tran is properly an appealing party, we hereafter refer to him as the sole appellant, "Tran."

"On appeal from an order confirming an arbitration award, . . . our review is de novo unless the order hinges on a factual finding, which we review for substantial evidence." (Condon v. Daland Nissan, Inc. (2016) 6 Cal.App.5th 263, 267.) Tran does not cite or address the sole statutory grounds the Legislature has enacted to vacate or correct an arbitration award. (Code Civ. Proc., §§ 1286.2, 1286.6.) Instead, he asserts five new arguments on appeal, none of which he raised in his opposition below, which only reiterated and improperly expanded the duress argument the arbitrator rejected.

The trial court may vacate an arbitration award on the following grounds: "(1) The award was procured by corruption, fraud or other undue means. (2) There was corruption in any of the arbitrators. (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision." (§ 1286.2.)
The grounds for correcting an arbitration award pursuant to Code of Civil Procedure § 1286.6 are as follows: "(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or (c) The award is imperfect in a matter of form, not affecting the merits of the controversy."

We briefly address in turn each of Tran's five new arguments, but issues not raised in the trial court are forfeited on appeal, and therefore furnish no basis for reversal. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592.) We may not reverse a lower court ruling absent demonstrated error (Cal. Const., art. VI, § 13), and the trial court does not err "in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.) These rules apply with equal force to appellants appearing in propria persona. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

We set out verbatim the issues Tran raises for review, as follows: A. "Did the Court Err in taking the Trans['] Demurrers filed 8/7/2015 off calendar?"

Tran's argument is unclear, and here in one of the few times in the brief in which he cites the record, his record citation to page 733 of the clerk's transcript does not support his claim. It appears Tran is claiming the trial court erred in failing to calendar a hearing on the Trans' demurrer to the second amended complaint, but because the parties signed in September 2015 the Settlement Agreement resolving the complaint, there was no basis for the court to consider the Trans' demurrer or schedule any further trial proceedings. B. "Did the Arbitrator err in allowing the Trans['] own attorney to testify against them and did the Arbitrator err in allowing the Trans['] attorney Krongold [to] determine Kevin Tran[']s mental state [concerning duress?] in testifying against him while still Kevin Tran[']s attorney of record?"

Tran asserts in a further subheading to this argument that "The Attorney client privilege is owned by the client, not by the attorney," but he provides no record of the arbitration proceedings, nor any support for his claim the Trans' attorney divulged attorney-client secrets. In any event, Tran forfeited the issue by failing to raise it in his opposition to the Nguyens' motion to confirm the arbitration award. As noted, he may not attempt to gain reversal based on issues or claims not raised for the trial court's consideration. C. "Did the Arbitrator err as to Linh Tran's forced appearance at arbitration?"

Similarly, Tran provides no record support for this contention, which Tran also asserts for the first time on appeal, thereby forfeiting it. D. "Did the court err in ignoring the Trans['] Request for Trial De Novo?"

The one-page preprinted Judicial Council form the Trans filed, entitled, "Request for Trial De Novo after Judicial Arbitration,"~(ct 813)~ had nothing to do with the parties' contractual arbitration. As this court has explained: "California law provides for two kinds of arbitrations — nonbinding judicial arbitration under the Judicial Arbitration Act . . . (Code Civ. Proc., § 1141.10 et seq.) and binding contractual arbitration under the California Arbitration Act . . . . (Code Civ. Proc., § 1280 et seq.) The two statutory schemes are 'mutually exclusive and independent of each other.' (Code Civ. Proc., § 1141.30.) In contrast to contractual arbitration, judicial arbitration is not arbitration at all, since it does not result in a final decision, there is full and complete discovery, the arbitrator is required to follow the facts and the law, and the parties may ask for a trial de novo. [Citation.]" (Heenan v. Sobati (2002) 96 Cal.App.4th 995, 1000-1001.) Entirely inapt to contractual arbitration, the form the Trans filed had no effect. E. "Did the court err in its denial of a court trial?"

Tran's argument is incoherent, but he appears to believe that because the Nguyens' complaint requested rescission, an equitable remedy for which the common law did not require a jury trial, he was therefore entitled to a court trial. But again, this overlooks that the parties dispensed with further court proceedings by settling their claims.



Linh Tran's appeal is dismissed for lack of standing. We affirm the trial court's order confirming the arbitration award in all respects. The Nguyens' request by a separate motion on appeal for sanctions against the Trans in the amount of $1,275 is granted for failure to follow the appellate rules requiring record citations for each assertion in the statement of facts, limited to matters in the record (Cal. Rules of Court, rule 8.204(a)(1)(C) & (2)(C); Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-885 [monetary sanctions appropriate for failure to cite record].) Sanctions are particularly appropriate because, had the Trans taken the time to attempt to cite the record, they might have realized none of the arguments they raise on appeal were preserved below, and therefore furnish no basis for reversal. Respondents are entitled to their costs on appeal


Summaries of

Nguyen v. Tran

Jul 24, 2017
G053482 (Cal. Ct. App. Jul. 24, 2017)
Case details for

Nguyen v. Tran

Case Details

Full title:BRIAN NGUYEN et al., Plaintiffs and Respondents, v. KEVIN TRAN et al.…


Date published: Jul 24, 2017


G053482 (Cal. Ct. App. Jul. 24, 2017)