Tan v. Chen CA1/5

Filed 4/7/16 Tan v. Chen CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

VIVIAN TAN, Plaintiff , Cross-defendant and Appellant, A141615

v. (Contra Costa County LILY CHEN, Super. Ct. No. MSC10-02995) Defendant, Cross-complainant and Respondent.

This litigation arises from a verbal agreement between appellant Vivian Tan and respondent Lily Chen regarding the use of an album of original Chinese paintings that was owned by Tan’s grandmother. Tan appeals from a judgment following a bench trial in which the court found in favor of Chen on all of Tan’s claims for relief, concluded the agreement was unenforceable due to the parties’ mistake about the value of the album, and ordered Tan to return $70,000 paid to her by Chen under the terms of the agreement. We affirm.

FACTS AND PROCEDURAL HISTORY Chen lived next door to Jian Jun Lu, an artist. Through her family, Chen met Tan, who was then a law student, and Tan’s mother Felicia,1 who had a background in the field of fine arts. In 2008, Tan, Chen and Lu entered into a verbal agreement to

1 We refer to Felicia by her first name to avoid confusion. Later in our opinion, we do the same when referring to Tan’s aunt, Tammy Tan.

undertake an art project in which Lu would create oil renderings of classical Chinese paintings. Chen did not have any expertise in art, but acted as Lu’s agent during the project. To facilitate the project, Tan agreed to provide Lu with an album of 12 traditional Chinese paintings owned by her grandmother (the Luo Han album), though she did not disclose the identity of the album’s owner to Chen or Lu. Tan advised Chen that the album’s owner would lend it to the project for one year for a fee of $120,000, and Chen and Lu verbally agreed to this arrangement. At the time of the discussions, Felicia had estimated the value of the album to be $1.2 million. The $120,000 fee for the use of the album (which Chen understood to be a licensing fee) was supposed to come out of the sales proceeds of the oil paintings produced by Lu. Tan and Felicia told Chen they needed to come up with a way to get the money up front, and Chen borrowed $70,000 from her home equity line. The money was wired to Tan’s aunt in Taiwan, with Tan’s grandmother to be the ultimate recipient of the funds. Tan’s aunt delivered the album from Taiwan in October 2008 and Tan gave it to Chen so Lu could use it for his paintings. Tan and Felicia became dissatisfied with Lu’s work on the art project and took the album back. They gave it to Chen in November 2008. On June 24, 2010, Tan filed this civil action against Chen and Lu. Tan’s amended complaint contained causes of action for civil conspiracy, fraud, deceit, promissory fraud, conversion, breach of contract, and breach of the implied covenant of good faith and fair dealing. Among other things, the prayer for relief sought damages in the amount of $50,000 plus interest (representing the balance allegedly due on the $120,000 fee for use of the album), damages attributable to economic loss occasioned by Chen’s retention of the album, punitive damages, and an equitable order requiring Chen and Lu to return the album to Tan. The court sustained Chen’s demurrer with leave to amend, brought on the ground that Tan did not own the album at issue and the true owner was a necessary and indispensible party. (See Code Civ. Proc., § 389.)