Nguyen v. Nguyen CA3

Filed 4/21/14 Nguyen v. Nguyen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)

KEN NGUYEN, C071457

Plaintiff and Appellant, (Super. Ct. No. CVCS 08-1319) v.

TIEN CAO NGUYEN et al.,

Defendants and Respondents.

Plaintiff Ken Nguyen, appearing in pro. per., appeals from a postjudgment order confirming the sale of real property and ordering the distribution of funds. He argues the trial court incorrectly ordered the net proceeds of sale (after repayment of the purchase loan) be distributed among the four owners, and that his share of the proceeds should have been one-quarter of the proceeds before repayment of the purchase loan. Because this is a judgment roll appeal, we presume the order after judgment is valid and is supported by substantial evidence. As there is no evidence in the record indicating the trial court erred in ordering the distribution of the proceeds, we shall affirm the order.

1

FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Ken Nguyen filed a complaint alleging embezzlement, breach of contract, fraud, breach of fiduciary duty, unjust enrichment, defamation, and requested an accounting. Plaintiff alleged he and his nephews purchased two parcels of property on Garden Highway in Nicolaus, California. He alleged he paid $237,500 for his one-quarter share of the purchase price. He alleged the other owners took out a loan and that “[t]he loan was supposed to be fractional and Plaintiff owed nothing in loan.” Plaintiff alleged his name did not appear as a joint tenant on the deed. The case was tried to the court. Following plaintiff’s presentation of evidence, defendants brought a motion for judgment pursuant to Code of Civil Procedure section 631.8. The trial court granted defendants’ motion for judgment to all of plaintiff’s causes of action except for the cause of action for partition. In its interlocutory judgment, the trial court ruled that the proceeds of sale would be “divided 25% to each party, being Ken Nguyen [(plaintiff)], Alphonso Khuong Nguyen, Tien Van Nguyen, and Cuong Quoc Nguyen.” The trial court retained jurisdiction over the sale and proceeds of sale. Approximately five months later, defendants filed a motion for order confirming the sale of the property and the distribution of funds. Defendants sought an order directing the distribution to each owner one-quarter of the estimated subtotal of $515,250. The subtotal was calculated by subtracting from the sales price ($875,000) a five percent broker’s commission, closing costs, and a bank loan in the amount of $306,000. Plaintiff filed an opposition to the motion, arguing specifically that the bank loan should not be deducted from the proceeds before distribution. Relevant to the issue on appeal, plaintiff submitted a declaration, stating the following: “Plaintiff has no loan on the Subject Property. Indeed, Plaintiff has already paid off his contribution ($237,500) to buy the Subject Property. Defendant Tien Nguyen received from Plaintiff a total contribution of $235,000 wired directly to Old Republican Title . . . , and US Bank . . . , and a cash of $2,500 (total $237,500). Beside that, Plaintiff also contributed a loan fee