Tran v. Ricci

The second cause of action is entirely derivative of the first cause of action for breach of contract / specific performance. The second cause of action seeks an accounting of income and benefits received by defendant between 4/26/2022 and consummation of the purchase and sale agreement by court order. (Complaint ¶ 22.) Thus, if plaintiff is not successful on the first cause of action, the second necessarily fails as well.

The motion must be granted because defendant’s moving papers show that plaintiff did not have an enforceable option to purchase the property.

The Complaint alleges, “Pursuant to the terms of an Option to Purchase agreement dated August 6, 1913, plaintiff’s predecessor in interest held an option to purchase the Subject Real Property which could only be exercised on or after December 31, 2020, and no later than December 31, 2028. On or about December 12, 2012, Plaintiff was granted by written instrument the option to purchase the Subject Real Property.” (Complaint ¶ 6.) Plaintiff then alleges that on January 27, 2021, “Plaintiff exercised her option to purchase the Subject Real property ...” (Complaint ¶ 7.) Thus, the action depends on plaintiff having a contractual option to purchase the property. The moving papers show that plaintiff did not have such an option.

The Option to Purchase was a separate written agreement executed in 1973, identified a specific optionee (not plaintiff), and imposed detailed conditions governing exercise of the Option.

The Ricci Family Trust’s interest in the property was subject to a long-term ground lease originally entered into in 1958, which was amended in 1973 to extend the lease term through December 31, 2028. On the same date in 1973, Luciano Ricci and Elizabeth Ricci executed a separate written Option to Purchase in favor of the then-lessee. (Cosentino Decl., Exh. 5.) The Optionee identified in the Option was Charles S. Pashayan, President of Ced-Shaw. (Ibid.) Plaintiff Tran acquired a subleasehold interest in the property in 2012 after purchasing leasehold interests at a foreclosure auction. (Cosentino Decl., ¶ 10.) However, the Option to Purchase was never assigned to plaintiff. (Cosentino Decl., ¶ 12.) Plaintiff obtained a “Consent to Assignment of Sublease dated 12/12/2012 (Cosentino Decl., Exh. B), but this document did not assign the Option to Purchase. (Cosentino Decl., ¶¶ 13-17.)

The undisputed evidence establishes that Tran never acquired that contractual option to purchase the property. The Ricci Family Trust’s records contain no written assignment transferring the Option to plaintiff. (Cosentino Decl., ¶¶ 12–17). The only assignment document Tran has produced addresses a sublease (Cosentino Decl., ¶¶ 13– 14, Ex. B), but it does not assign the Option itself.

The opposition fails to establish that plaintiff did possess an option to purchase the property. The court notes here significant defects in the opposition papers that render the opposition entirely ineffectual.

Plaintiff’s responsive separate statement is defective. Where plaintiff purports to dispute facts, the response only cites to evidence, without ever “stat[ing] ... the nature of the dispute and describe[ing] the evidence that supports the position that the fact is controverted (Cal. Rules of Court, rule 3.1350(f)(2).) Given plaintiff’s failure to file a responsive separate statement, the facts are treated as undisputed.

Additionally, the bulk of plaintiff’s opposition evidence is inadmissible because plaintiff Tran’s declaration is not signed. (See Code Civ. Proc., § 2015.5 [declaration must be signed under penalty of perjury].) A declaration that does not comply with section

2015.5 is of no evidentiary value. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 605–606, 618; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.)

Even if the opposition evidence were admissible, plaintiff still fails to show the existence of a triable issue of material fact. Plaintiff alleges in her Complaint that her purported right to purchase the property arose from the Option to Purchase. (Complaint ¶¶ 6-7.) The Complaint also alleges that the February 12, 2012 escrow instructions constitute a “purchase and sale agreement” (Complaint ¶ 9), but that clearly is not what it is. Similarly, plaintiff in the opposition asserts that she and defendants entered into a written purchase agreement for sale and purchase of the subject property.

This document is attached to plaintiff’s unsigned declaration as Exhibit A. Even if the declaration were admissible, Exhibit A is not a purchase contract. Rather, the exhibit consists of escrow instructions. Plaintiff cites to no authority to the effect that escrow instructions constitute a contract to sell. Plaintiff fails to show that she had a contractual option to purchase the property. There is no evidence of a valid contractual agreement that plaintiff can enforce via specific performance.

The opposition argues that defendants should be estopped from arguing that the option is valid because Mr. Cosentino informed plaintiff that the option is valid, and did not act contrary to the agreement to sell the property. Plaintiff presents authorities as follows:

Equitable estoppel precludes a party from asserting rights they otherwise would have had against another when their own conduct renders assertion of those rights inequitable. Soltero v. Precise Distribution, Inc., (2024) 102 Cal.App.5th 887, 893. Doctrine of equitable estoppel is based upon vital principle that person who by his or her language or conduct leads another to do what he or she would not otherwise have done shall not subject such person to loss or injury by disappointing expectations upon which he or she acted. Santa Clara Valley Water District v. Century Indemnity Company, (2023) 89 Cal. App. 5th 1016, 1052,

The only admissible evidence is that from plaintiff’s counsel, where evidence is provided that Cosentino stated in an email, “we (buyers and sellers) still have an open contract with first American and money in escrow, so we do not have to sign and new P & S contract for the sale of the property since the option has been exercised and still viable.” (Allison Decl. Exh. F.)

Even if plaintiff showed that defendant should be estopped from denying the existence of the option contract, the moving papers also show that plaintiff did not comply with the conditions precedent for exercising the Option to Purchase. An optionee is bound to the terms of the option contract. (See Simons v. Young (1979) 93 Cal.App.3d 170, 182.) The moving papers show:  Plaintiff failed to follow the required procedure for setting the purchase price. (UMF 11-16.)  Plaintiff did not comply with the conditions precedent for exercising the Option to Purchase because they failed to deliver a valid Second Notice. (UMF 17-19.)

 Plaintiff did not comply with the conditions precedent for exercising the Option to Purchase because they did not deposit the purchase price into escrow within the specified time. (UMF 20-21, 24.)  Plaintiff did not tender payment of the purchase price or otherwise demonstrate that they are ready and able to perform. (UMF 22-23.)

The acting trustees of the Ricci Trust did not waive or agree to modify any of the Option to Purchase’s conditions or procedural requirements. (UMF 29-30.) The opposition papers do not negate these facts.

Accordingly, the court intends to grant the motion for summary judgment. The court notes its rulings on the parties’ evidentiary objections:

 Plaintiff’s objections to defendant’s evidence: Overrule objection nos. 1, 2, 3, 6, 7, 9, 10, 11, 13, 14. Sustain objection nos. 4, 5, 8, 12.  Defendant’s objections to plaintiff’s evidence (if plaintiff’s declaration were signed): Overrule objection nos. 1, 2, 4, 5, 7. Sustain objection nos. 3, 6, 8, 9, 10.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/15/26. (Judge’s initials) (Date)

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