Ding v. Hui

Case No.: 22STCV34062 Matter: Motion for Summary Adjudication Moving Party: Cross-Complainant Singpoli Capital Corporation Responding Party: Cross-Defendant American BD Investment Group, LLC Tentative Ruling: Cross-Complainant Singpoli Capital Corporation's motion for summary adjudication is denied.

Defendant and Cross-Complainant Kin Hui and Cross-Complainants Singpoli Milpitas, LP and Singpoli Capital Corporation ("SCC") (collectively "Cross-Complainants") filed their First Amended Cross-Complaint ("XC") against Cross-Defendants American BD Investment Group, LLC ("American Investment" or "ABD").

On July 7, 2025, Cross-Complainants filed their First Amended Cross-Complaint ("FAXC") alleging eight causes of action for: (1) breach of contract; (2) breach of fiduciary duty; (3) breach of covenant of good faith and fair dealing; (4) breach of contract; (5) common count-open book account; (6) common count-money lent; (7) common count-account stated; and (8) reformation of contract.

SCC moves for summary adjudication as to its fourth, fifth, seventh, and eighth causes of action brought forth in its FAXC in favor of SCC and against American Investment. American Investment opposes.

Legal Standard

"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, . . . if the party contends that . . . there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., Sec. 437c, subd. (f)(1) (emphasis added).)

"The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

"When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment." (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc. Sec. 437c, subd. (c).)

Request for Judicial Notice

SCC requests that the Court take judicial notice of a copy of First Global International Investment Group, Inc.'s Statement of Information available for download on the California Secretary of State pursuant to Evidence Code section 452, subdivision (h). Thus, the Court grants the request for judicial notice pursuant to Evidence Code section 452, subdivision (h).

Evidentiary Objections

American Investment makes two evidentiary objections to Kin Hu's declaration. The Court rules in the following manner: Sustained: 2 (Lacks Foundation) Overruled: 1

American Investment makes four evidentiary objections to Chi "Eric" So's declaration. The Court rules in the following manner: Sustained: 4 (Hearsay)(Lacks Foundation) Overruled: 1, 2, 3

SCC made several evidentiary objections to evidence presented by American Investment. The Court declines to rule on SCC's evidentiary objections per Code of Civil Procedure section 437c, subdivision (q).

Analysis

SCC moves for summary adjudication on its fourth cause of action for breach of contract. Alternatively, SCC moves for summary adjudication per the fifth, sixth, and seventh causes of action. SCC also moves for summary adjudication on the issue of duty if the Court denies the motion on the other basis listed.

Fourth Cause of Action- Breach of Contract

SCC contends that it is entitled to summary adjudication as to the fourth cause of action because ABD is liable to SCC for breach of contract for failing to pay $1,500,000 plus 3.5% interest accruing as of August 18, 2017.

"To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff." (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

SCC argues that the determinative issue for summary adjudication is whether "the parties agreed to treat ABD's $1,500,000 transfer to Park Place in 2017 as a loan, with the $1,500,000 payment for the 3.44% purchased of BDKC shares to be made by year-end 2018." (Mot., 16:20-24.) SCC contends that if the Court rules in its favor on this issue, all other elements are established.

"The requirements are only that there be a writing containing all terms and that there be acceptance by the party to be charged. How that acceptance is manifested is a matter of proof. It may be proved by evidence of words spoken, if believed by the trier of fact. It may be proved by evidence of a particular act other than signing. It may be proved by evidence that the party to be charged prepared the written document and offered to perform its terms. It was this last method of proof, preparation of the document and an offer to perform, that led to the conclusion . . . that the defendant title company had entered into a contract founded upon a written instrument." (E.O.C. Ord, Inc. v. Kovakovich (1988) 200 Cal.App.3d 1194, 1200.)

"Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. ([Citation.]) Mutual assent is a question of fact."(Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140.)

""'[W]hether a certain or undisputed state of facts establishes a contract is one of law for the court .... On the other hand, where the existence and not the validity or construction of a contract or the terms thereof is the point in issue, and the evidence is conflicting or admits of more than one inference, it is for the jury or other trier of the facts to determine whether the contract did in fact exist, ...' [Citation.]"" (Ibid.)

It is undisputed that the parties entered into an agreement for American Investment to purchase the SCC's 6.66% interest in BDK Capital. (Undisputed Material Fact ("UMF") 2) The parties agreed that the value of the ownership interest was $2,900,000, to be paid in two payments: $1,500,000 and $1,400,000. (UMF 3)

SCC contends that American Investment failed to pay $1,500,000 as outlined in the Sovik Memorandum. (SCC Ex., 58.) The initial agreement signed by the parties required full payment no later than October 31, 2017. (SCC Ex. 56, p. 3.) Thereafter, the parties executed an amendment to the Agreement; payment was to be "remitted to the account of Park Place Commercial LP at Shanghai Commercial Bank Ltd., Los Angeles Branch, account number ...." (SCC Ex., 57.) Then the following year, Mike Sovik sent a memorandum to Ivy Hui and Frank Lin where SSC "would like to account for the sale of interest in BDK to [American Investment] using installment sales method and defer the sale proceeds of $1,500,000 to 2018 tax year." ("2018 Memorandum") (SCC Ex. 58.)

While the 2018 Memorandum explicitly states that "[t]he objective is to substantiate that the $1,500,000 that ABD loaned to PPC in 2017 has no relation to the sale of membership interest in BDK made by SCC to ABD." (SCC Ex., 58.), the critical issue whether the $1,500,000 payments made by ABD was a loan or payment for the shares in compliance with the 2017 agreement. As both parties noted, the terms of this alleged manifestation of the agreement were also not complied with. Both parties agree that no loan agreement or promissory note was executed, but the 2018 Memorandum instructs American Investment to issue a promissory note to SCC, which it did not execute. (Mot., 17:1-12; SCC Ex. 58.)

It is SCC's position that the 2018 Memorandum memorializes the terms of the parties and that American Investment assented to the terms of the Memorandum. The Court is not persuaded by SCC's argument. First, SCC misstates the deposition of Frank Lin ("Lin") as to UMF 17, 18, 19, and 20. In Lin's deposition, he read from the 2018 Memorandum; he did not "confirm the plan" as stated by SCC. (Gamarnik Decl., Ex. C, 86:17-87:20.)

Moreover, the burden is on SCC to establish that no triable issue of material fact exists regarding whether American Investment still has an outstanding debt to SCC. SCC has not produced evidence to support that proposition. SCC is asking the Court to weigh the evidence based on its credibility, but has not provided any legal authority permitting the Court to assess the credibility of the evidence before it.

Another dispute is the contradiction in Chi Eric So's declaration, which states that Lucas Horsfall Advisors LLC provided accounting services, including "managing and reviewing entries in ABD's financial records, including its general ledgers, balance sheets, and tax returns." (So Decl., P. 3.) However, in So's deposition, he testified that Lucas Horsfall Advisors LLC does not provide other financial services to American Investment other than tax returns and calculating loan interest. (Mitilian Dec., Ex. A, p. 19:3-21; 20:4-25.) SCC relies heavily on the testimony of Lin and So, but both are misquoted in the Separate Statement to support its position.

Additionally, SCC argues that the evidence before the Court shows that American Investment manifested assent by affirming to the IRS, under penalty of perjury, that American Insurance owed the Subject Funds. However, SCC does not provide legal authority to support its claim that this alone is sufficient for it to prevail on its claim. SCC cites to federal cases that are persuasive, not binding, and the Court finds these cases inapplicable as well. In Marks v. American Airlines, Inc. (9th Cir. 2009) 313 F.App'x 933, the court did not expand on the argued proposition, and the dispute was regarding an out-of-state resident asserting he was a California resident without paying California taxes. (Marks v.

American Airlines, Inc. (9th Cir. 2009) 313 F.App'x 933, 934.) In Estate of Hilda Ashman v. Comm'r (9th Cir. 2000) 231 F.3d 541, the court reviewed a Tax Court's application of the duty of consistency and its authority. In R. H. Stearns Co. v. United States (1934) 291 U.S. 54, 59 the United States Supreme Court addressed whether a taxpayer abandoned his privilege to insist upon fulfillment of a condition. Thus, these cases do not support SCC's argument.

SCC's final argument is that American Investment ratified its conduct by including the disputed funds in its financials. However, it is unclear to the Court how American Investment's conduct with respect to its documents establishes assent to the terms of the 2018 Memorandum.

For the reasons addressed above, the Court finds that SCC has not presented evidence to establish that a triable issue of material fact does not exist between the parties that American Investment owes and has not paid the disputed funds. Because a triable issue of material fact exists regarding SCC's entitlement to summary adjudication as to the fourth cause of action, the burden does not shift to American Investment. Thus, SCC's motion for summary adjudication as to the fourth cause of action is denied.

Alternative Motion for Summary Adjudication

Because the Court has denied the motion for summary adjudication on SCC's fourth cause of action, SCC also moves for summary adjudication in the alternative as to the fifth, sixth, and seventh causes of action.

Fifth Cause of Action- Open Book Account

"An open book account may consist of a single entry reflecting the establishment of an account between the parties, ([Citation.]) and may contain charges alone if there are no credits to enter. ([Citation.]). Money loaned is the proper subject of an open book account. [Citation.] Of course a mere private memorandum does not constitute a book account." (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 66.)

Here, SCC relies on the 2018 Memorandum as the basis for the intentions of the parties for the disputed funds, but as addressed in this ruling, it has not been established that no triable issue of material fact exists to support SCC's claim. (UMF 95, 98.) Moreover, it is unclear why SCC relies on Zinn to support its argument, but the case concerns whether an account statement constitutes a new contract. (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 604 (Zinn).) Thus, Zinn is inapplicable to the cause of action.

Another issue raised by the opposition, without any supporting legal authority, is whether an open account exists between the parties is a question of fact, not law. (Cochran v. Rubens (1996) 42 Cal.App.4th 481, 485.) Whether an account is deemed closed is also a question of fact. (Ibid.) "[T]he trial court's role in deciding a motion for summary [adjudication] involves no findings of fact." (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1136.)

Because a triable issue of material fact exists regarding SCC's entitlement to summary adjudication as to the fifth cause of action, the burden does not shift to American Investment. Thus, SCC's motion for summary adjudication as to the fifth cause of action is denied.

Sixth Cause of Action-Money Lent

"The common law, from which we derive our forms of pleading known as the "common counts", knew a count for "money lent" which was the appropriate form in which to state a cause of action for money loaned." (Jones v. Re-Mine Oil Co. (1941) 47 Cal.App.2d 832, 843.) "The only essential allegations of a common count are "(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment." (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 459.)

SCC's motion for summary adjudication also relies on the same arguments raised throughout its motion. The ongoing dispute is whether there is an outstanding debt. Thus, for the reasons addressed throughout this ruling, SCC has not met its burden to establish that a triable issue of material fact exists regarding SCC's entitlement to summary adjudication as to the sixth cause of action; the burden does not shift to American Investment. Thus, SCC's motion for summary adjudication as to the sixth cause of action is denied.

Seventh Cause of Action-Account Stated

"An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing. ([Citation.]) To be an account stated, "it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing."" (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753 (citation omitted).)

""[A]n element essential to render the account stated is that it receive the assent of both parties, but the assent of the party sought to be charged may be implied from his conduct."" (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 968.) "Accordingly, an action on an account stated is not based on the parties' original transactions, but on the new contract under which the parties have agreed to the balance due." (Ibid.)

SCC relies on the same alleged obligations set forth in the 2018 Memorandum to argue that it is entitled to summary adjudication on the sixth cause of action. The ongoing dispute is whether the 2018 Memorandum, assented to by the parties, constitutes an agreement between them regarding the amount owed on the alleged Disputed Funds. SCC's cause of action is premised on the alleged breach of contract per the fourth cause of action. (FAXC, P. 83.)

Because a triable issue of material fact exists regarding SCC's entitlement to summary adjudication as to the seventh cause of action, the burden does not shift to American Investment. Thus, SCC's motion for summary adjudication as to the seventh cause of action is denied.

Duty

SCC moves in the alternative on the issue of American Investment's duty "to pay outstanding principal balance of $1,500,000 plus an amount of interest to be determined at the time of trial." (Mot., 26:19-22.) However, SCC does not provide the Court with any legal authority to support its entitlement to summary adjudication on the issue of duty.

SCC cites to Transamerica to support its argument. "The question of whether a duty exists under certain circumstances is generally a question of law. ([Citation.]) This is particularly true in the context of insurance and the issue of duty to defend." (Transamerica Ins. Co. v. Superior Court (1994) 29 Cal.App.4th 1705, 1713.) The Court finds this case inapplicable because, in Transamerica, the court addressed the duty to defend under an insurance policy. (Ibid.)

Because a triable issue of material fact exists regarding SCC's entitlement to summary adjudication as to the issue of duty, the burden does not shift to American Investment. Thus, SCC's motion for summary adjudication as to the issue of duty is denied. Therefore, the SCC's motion for summary adjudication is denied in its entirety.

Conclusion

Cross-Complainant Singpoli Capital Corporation's motion for summary adjudication is denied.

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