Judge: Richard Y. Lee, Case: 30-2019-01059839, Date: 2022-08-25 Tentative Ruling

Defendant Loan Oak Fund (“LOAN OAK”) seeks an order granting summary judgment on Plaintiff Boahua Wang’s (“B-WANG” or “Plaintiff”) Second Amended Verified Complaint  (“SAC”), or in the alternative, summary adjudication of the following issues:

Issue One: The entire SAC is time-barred as to LONE OAK pursuant to Code of Civil Procedure section 338(d).

Issue Two: Plaintiffs’ 1st CoA to quiet title against LONE OAK is barred by the equitable doctrines of laches, waiver, ratification, consent, and election of remedies.

Issue Three: Plaintiffs’ 3rd CoA for an equitable lien against LONE OAK is barred by the equitable doctrines of laches, waiver, ratification, consent, and election of remedies.

Issue Four: Plaintiffs’ 4th CoA for an injunction against LONE OAK is barred by the equitable doctrines of laches, waiver, ratification, consent, and election of remedies.

Request for Judicial Notice by LOAN OAK.

LOAN OAK requests the Court take judicial notice of Exhibits 1, 5, 6, 8, 11, 12, 14, 19, and 20, documents which have all been recorded with the County Recorder’s Office for the County of Orange or County of Los Angeles. The Court GRANTS judicial notice of Exhibits 1, 5, 6, 8, 11, 12, 14, 19, and 20 pursuant to Evidence Code section 452(c). The Court takes judicial notice of the existence of these documents and their legal effect. but the court does not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.)

The Court GRANTS LOAN OAK’s request for judicial notice of Exhibits 16 through 18 and 21, documents which have been filed with this Court and are part of this Court’s records, pursuant to Evidence Code section 452(d).

The Court DENIES LOAN OAK’s requests for judicial notice of Exhibits 21 and 22, documents concerning currency transfer restrictions by the Chinese government and the currency exchange rates.

Request for Judicial Notice by Plaintiff B-WANG.

Plaintiff requests the Court take judicial notice of Exhibits 51-56, 67-73, and 75, documents which have all been recorded with the County Recorder’s Office for the County of Orange or County of Los Angeles. The Court GRANTS judicial notice of Exhibits 51-56, 67-73, and 75 pursuant to Evidence Code section 452(c). The Court takes judicial notice of the existence of these documents and their legal effect. but the court does not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.)

The Court DENIES Plaintiff’s request for judicial notice of Exhibit 86 which is a print-out of B-WANG’s travel history.

The Court GRANTS Plaintiff’s request for judicial notice of Exhibit 82, which is the First Amended Complaint filed with this Court, pursuant to Evidence Code section 452(d).

The Second Amended Verified Complaint.

The operative pleading is the Second Amended Verified Complaint (“SAC”). The subject of this action is real property commonly known as 500 W. Las Palmas Drive, Fullerton, California (“Property”) and is a residential home.

Plaintiffs allege they reside in China and Plaintiff B-Wang is the son of Zhengjun Wang (“Z-Wang”). Z-WANG was a plaintiff and party to this action, but the Court struck the SAC as to Z-WANG on May 5, 2022.

Plaintiffs assert claims against Defendants Fai Wong (“F-WONG”), Liming Jiang (“LIMING) (wife of Defendant F-WONG), Qun Yang (“QUN”) and Xiadong Bai (“XIAODONG) (both of whom are alleged to be the sons or step-sons of Defendants F-WONG and/ LIMING), Fei Xu (“FEI”) (wife of Defendant XIADONG), Golden Ocean Investment LLC (“GOLDEN OCEAN”) (the manager and CEO of which is Defendant FEI), Golden Travel & Cultural Entertainment (“GOLDEN TRAVEL”) (the members and/or officers of which are alleged to be Defendants F-WONG and QUN), Global Panda Entertainment LLC (“GOLDEN PANDA”), Li Wu (“LI”) (alleged to be the manager of Defendant GLOBAL PANDA), and Loan Oak Fund, LLC (“LOAN OAK”), Qualfax, Inc. (“QUALFAX”) (collectively “Defendants”).

Plaintiffs allege causes of action against Defendants for: (1) quiet title; (2) constructive trust; (3) equitable lien; (4) preliminary and permanent injunction; and (5) cancellation of instrument.

Plaintiffs allege that they are Chinese nationals with limited knowledge of English and of the real estate markets in California; that they entered into an agreement with Defendant F-WONG, who resided in Nevada, for him to acquire real estate properties on their behalf; that Plaintiffs would transfer funds to accounts controlled by F-WONG in China; that F-WONG and his associates including his wife Defendant LIMING would use said funds to purchase properties they recommended through an entity controlled by them; and that the entity would then sell the property to Plaintiff Z-WANG or his son, Plaintiff B-WANG (which Plaintiffs later learned were at inflated prices). (See SAC, ¶¶ 23-34.)

As part of this real property arrangement and agreement, Plaintiffs allege that on or about June 18, 2021, Defendant GOLDEN OCEAN, an entity which Plaintiffs allege was controlled by Defendants F-WONG and LIMING, purchased the Property for $1,920,000; that on or about August 16, 2012, GOLDEN OCEAN conveyed the Property to Plaintiff B-WANG for $2,650,000; and that a grant deed was recorded in the official records of Orange County but included a false representation that stated: “The Grantors and the Grantees in this conveyance are comprised of the same parties who continue to hold the same proportionate interest in the property, R&T 11925(d)”. (See SAC, ¶¶ 41-46.)

Plaintiffs allege that in 2014 they decided to sell the Property; that Defendant F-WONG offered to help sell the Property and falsely represented that it was necessary for Plaintiff B-WANG to sign a notarized power of attorney appointing him or one of his associates as attorney-in-fact; and that Defendants F-WONG, LIMING, and XIAODONG engaged in fraudulent conduct to trick Plaintiff B-WANG into signing a “Power of Attorney – Special” form which appointed Defendant LIMING as the power of attorney with the right to “remise, release, convey, mortgage, convey in trust, and hypothecate” the Property (“2014 Power of Attorney”). Plaintiffs allege the 2014 Power of Attorney is void because they believed it was only to authorize for LIMING to sell the Property on their behalf. (See SAC, ¶¶ 47-49.) The 2014 Power of Attorney is alleged to have been recorded in the Official Records of Orange County on April 25, 2014.

Using the 2014 Power of Attorney, Plaintiffs allege that in or about January 2015, Defendant F-WONG and his associates obtained a loan from Defendant LOAN OAK; that they believe that Defendant LIMING signed a grant deed conveying the Property from Plaintiff B-WANG to Defendant GLOBAL PANDA prior to obtaining the loan from LOAN OAK; that the grant deed stated that the “conveyance is to secure a debt, R&T 11921” which was false because B-WANG did not owe any monies to Defendant GLOBAL PANDA; that Plaintiffs did not authorize the conveyance to GLOBAL PANDA; that Defendant LIMING committed fraud and breached her fiduciary duties by signing the grand deed transferring the Property to GLOBAL PANDA; that Defendant F-WONG, as Managing Member of Defendant GLOBAL PANDA signed a deed of trust with absolute assignment of leases and rents, security agreement, and fixture filing (“2015 Grant Deed”) for the benefit of Defendant LOAN OAK to secure a loan of $3,660,000; and that the 2015 Grant Deed encumbered the Property as well as two other properties which are not the subject of this litigation. (See SAC, ¶¶ 50-54.)

Plaintiffs allege the Defendant LOAN OAK knew or should have known of irregularities in the chain of title including, inter alia, that the 2015 Grant Deed was not signed by Plaintiff B-WANG; that the Grant Deed was signed by Defendant GLOBAL PANDA; and LOAN OAK should not have relied on the 2014 Power of Attorney without any inquiry. (See SAC, ¶¶ 54-55.)

Plaintiffs allege that “in or about 2015” they learned that the Property was no longer in the name of Plaintiff B-WANG; that they did not know the Property had been used to secure a loan taken out by Defendant GLOBAL PANDA; that Defendant F-WONG told them the Property was transferred to GLOBAL PANDA to facilitate a sale but the real estate market was slow and to wait; that in or about October 2016, F-WONG told Z-WANG that he would buy back the Property at the original purchase price; and that from November 2016 through April 2017, Defendant F-WONG made payments toward that agreement to Plaintiffs and then stopped. (See SAC, ¶¶ 56-57.)

Plaintiffs allege that on or about December 27, 2016, Defendant GLOBAL PANDA transferred the Property back to Plaintiff B-WANG and same was recorded in the Official Records of Orange County (“2016 Grant Deed”) but that same included a misrepresentation that the grantor and grantee are the same party. (¶ 58.)

Plaintiffs allege that on or about December 21, 2016, Defendant F-WONG and his associates forged a Power of Attorney (“2016 Power of Attorney”); that the 2016 Power of Attorney was recorded in the Official Records of Los Angeles County on January 4, 2017; that Plaintiff B-WANG did not sign the 2016 Power of Attorney and was in China, not Los Angeles, at this time; that the 2016 Power of Attorney appointed Defendant F-WONG attorney in fact as to three properties including the Property; and that using the 2016 Power of Attorney, Defendant F-WONG signed a deed of trust with absolute assignment of leases and rents, security agreement, and fixture filing for the benefit of Defendant LOAN OAK to secure a loan in the amount of $4,145,000 (“2016 Grant Deed”); and that Defendant F-WONG executed a promissory note wherein Defendant GLOBAL TRAVEL and Plaintiff B-WANG are listed as the “Borrower”. (See SAC, ¶¶ 59-63.)

Plaintiffs allege that on or about October 31, 2017, they are informed and believed, that Defendants F-WONG and QUN and their associates forged another Power of Attorney which purports to appoint QUN as attorney in fact for Plaintiff B-WANG (“2017 Power of Attorney); that Plaintiff B-WANG purportedly signed the document in Nevada on October 31, 2017 but he was in China at that time; that the 2017 Power of Attorney was recorded; that pursuant thereto, QUN signed a grant deed transferring the Property from B-WANG to Defendant GLOBAL TRAVEL (“2017 Grant Deed”); that the 2017 Grant Deed included misrepresentations stating it was a “bonafide gift and the grantor received nothing in return”; that the 2017 Grant Deed was recorded; that Plaintiffs did not know about or authorize this transfer and received no benefit from the transfer; that they believe that on or about November 7, 2017, Defendant F-WONG, as managing member of Defendant GLOBAL TRAVEL, executed a deed of trust with absolute assignment of leases and rents, security agreement, and fixture filing for the benefit of Defendant QUALFAX to secure a loan in the amount of $300,000 (“2017 Deed of Trust”); and that Plaintiffs did not authorize or know of same. (See SAC, ¶¶ 64-69.)

Plaintiffs allege that on or about January 17, 2019, Defendant QUALFAX held a foreclosure sale on the 2017 Deed of Trust and that QUALFAX purchased the Property at foreclosure (“2019 Deed of Trust”). (See SAC, ¶¶ 72-73.)

Plaintiffs seek to quiet title and allege that Plaintiff B-WANG is the owner of the Property as fee simple owner and seeks to quiet title as to Defendant LOAN OAK who claims a security interest on the Property pursuant to the 2016 Deed of Trust, as to Defendant QUALFAX who claims a security interest and fee simple interest in the Property pursuant to the 2017 Deed of Trust and 2019 Trustee’s Deed of Trust, as to Defendant LIMING to the extent she claims any right to transfer any interest in the Property pursuant to the 2014 Power of Attorney, as to Defendants GLOBAL PANDA and LI to the extent they claim any interest by the 2015 Grant Deed, as to Defendant F-WONG and Defendant QUN to the extent they claim any right to transfer any interest in the Property pursuant to the 2016 and 2017 Power of Attorney, and as to Defendants GLOBAL TRAVLE, F-WONG, and QUN to the extent they claim any interest in the Property pursuant to the 2017 Grant Deed. (See SAC, ¶¶ 84-92.)

Plaintiffs allege that Defendants LOAN OAK, QUALFAX, GLOBAL PANDA, and GLOBAL TRAVEL all obtained their interests in the Property by wrongful acts and seek a constructive trust in their favor; seek an equitable lien on the Property in their favor in the event the Property is not quieted in their favor for the amount of the purchase money they provided to purchase the Property; seek an injunction prohibiting any further attempt to transfer or encumber the Property; and seek to cancel the 2016 and 2017 Power of Attorney and the 2016 and 2017 Deed of Trusts in favor of LOAN OAK and QUALFAX on the grounds the power of attorneys and promissory notes securing the deeds of trusts are void as to Plaintiffs. (See SAC, ¶¶ 84-113.)

Issue No. 1: Whether the entire Second Amended Complaint is time-barred as to LONE OAK pursuant to Code of Civil Procedure section 338(d).

Defendant LOAN OAK contends that the entire SAC is barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338(d) because the gravamen of Plaintiffs’ quiet title claims against it are based on the alleged fraud committed by Defendant F-WONG.

“The Legislature has not established a specific statute of limitations for actions to quiet title. [Citations omitted.] Therefore, courts refer to the underlying theory of relief to determine the applicable period of limitations. [Citation omitted.] An inquiry into the underlying theory requires the court to identify the nature (i.e., the ‘gravamen’) of the cause of action.” (Salazar v. Thomas (2015) 236 Cal.App.4th 467, 476.”

“Generally, the most likely time limits for a quiet title action are the...the four-year limitations period for the cancellation of an instrument...or the three-year limitations period for claims based on fraud and mistake.” (Salazar, supra, 236 Cal.App.4th at 476-77.)

Code of Civil Procedure Section 338(d) states “[a]n action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake” is governed by a three-year statute of limitations.

“Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Id. at 806-807.)

Here, pursuant to the SAC, Defendant LOAN OAK alleges that Plaintiffs allege F-WONG made false representations to them concerning the 2014 Power of Attorney; that Plaintiffs allege that F-WONG forged the 2016 Power of Attorney; and that Plaintiffs allege that Defendants acquired their interest in the Property by fraud. (See Motion, pp. 20 and 21.) Defendant LOAN OAK contends that Plaintiffs’ quiet title claims are time-barred because they discovered facts constituting the basis of their fraud claims in June 2014. Defendant LOAN OAK presents testimony by Z-WANG where he testified that he knew that he had been swindled by F-WONG by June of 2014. (See SSUMF Nos. 30, 33, 34 and 36; see also Exh. 2, Z-WANG deposition testimony, 85:12-17, 87:9-13, 87:14-20, 88:19-89:11, 90:10-24, 113:23-114:2.)

Plaintiff, in Opposition, contends that Plaintiffs could not have “discovered” Defendant F-WONG’s fraud in June 2014 when their action seeks to invalidate a deed of trust which was recorded on January 4, 2017.

Contrary to Defendant LOAN OAK’s assertions, Plaintiffs’ quiet title action is not based on Defendant F-WONG’s conduct in selling the Property to Plaintiffs at an inflated price back in August 2012. Although the SAC alleges that Defendant F-WONG sold the Property to Plaintiffs at an inflated price, Plaintiffs’ quiet title cause of action as to Defendant LOAN OAK concerns its security interest in the Property by the 2016 Deed of Trust which was recorded on January 4, 2017. (See SAC, ¶¶ 58-61 [“The 2016 Deed of Trust was recorded in Official Records of Orange County as Instrument # 2017000001907 at 8:00 am on January 4, 2017, immediately after the 2016 Power of Attorney (Instrument # 20170008544 in Los Angeles County), which was recorded immediately after 2016 Grant Deed (Instrument # 2017000001906 transferring the Property from Global Panda back to Baohua Wang). These three documents were recorded together in the process of obtaining the second loan from Lone Oak.”], 75, and 76.)

Plaintiffs seek to quiet title to the Property on the grounds the 2014, 2016, and 2017 Power of Attorney forms were forged; that the Power of Attorney forms are void; and that any subsequent instrument on the chain of title to the Property which purported to convey any interest in the Property based on said Power of Attorneys including, inter alia, the 2016 Deed of Trust (which granted Defendant LOAN OAK a security interest in the Property) are also void. (See SAC, ¶¶ 47-49, 50-55, 59-70, and 74-83.)

Further, Plaintiff disputes that they knew of Defendant F-WONG’s fraudulent conduct by June 2014. (See Response to SSUMF No. 30, 33, and 36.) Plaintiff presents evidence that in June of 2014, Z-WANG only discovered that Defendant F-WONG had sold the Property to Plaintiffs at inflated prices and that the Property was no longer in his son, Plaintiff B-WANG’s name only. (See Z-WANG Decl., ¶ 18.) Plaintiff also presents evidence that Defendant F-WONG had agreed to buy back the Property at the original price several times, up through October 2016, and that F-WONG had made payments to Plaintiffs from November 28, 2016 through April 10, 2017. (See Z-WANG Decl., ¶¶ 28-32.)

Next, Defendant LOAN OAK contends that despite the clear testimony by Z-WANG that Plaintiffs were aware of Defendant F-WONG’s fraud by June of 2014, Plaintiffs admit they first discovered F-WONG’s fraud in 2015 in paragraph 56 of the SAC; that their Complaint was filed on March 26, 2019; and thus their action is time-barred based on the three year statute of limitations.

Here, as set forth above, the quiet title cause of action is not based on Defendant F-WONG’s fraudulent conduct that occurred prior to 2014 nor is it based on him removing the Property from B-WANG’s name. (See supra.)

Further, Defendant LOAN OAK misinterprets the allegation in paragraph 56. The SAC alleges as follows:

“56.    In or about 2015, Plaintiffs learned from a friend in the U.S. that the Property and the Hacienda Heights Property were no longer under the name of Baohua Wang. Plaintiffs did not know the properties were used to secure a loan took out by Global Panda. Fai Wong explained that the properties were transferred to Global Panda to facilitate sale. Fai Wong told Plaintiffs the housing market was slow and they should wait patiently.”

Plaintiffs go on to allege:

“57.    In or about October 2016, Plaintiff Zhengjun met Fai Wong in Beijing, China. Fai Wong promised that he would buy back the properties at the original purchase prices. The buyback plan was acceptable to Plaintiffs. From November 2016 to April 2017, Fai Wong made some payments to Plaintiffs but then stopped.”

(See SAC, ¶¶ 56 and 57.) Contrary to Defendant LOAN OAK’s assertions, these allegations are not an admission by Plaintiffs that they “knew” of Defendant F-WONG’s fraudulent conduct “by” 2015.

Accordingly, based on the evidence, the Court finds that Defendant LOAN OAK failed to meet its initial burden of establishing that Plaintiff’s entire SAC is time-barred. And, even assuming arguendo that LOAN OAK had met its burden (which it did not), there are triable issues with respect to the statute of limitations. Summary adjudication as to Issue No. 1 is DENIED.

Issue Nos. 2 through 4: Whether Plaintiffs claims for 1st, 3rd, and 4th causes of action to quiet title, equitable lien, and injunction against LONE OAK is barred by the equitable doctrines of laches, waiver, ratification, consent, and election of remedies.

Defendant LOAN OAK contends that Plaintiffs are precluded from disputing its interest in the Property due to waiver, laches, and ratification and consent; that Plaintiffs would be unjustly enriched if they were allowed to avoid its liens secured by the Property as they would receive double recovery; and that Plaintiffs have effectively elected their remedies by accepting over $2,000,000 from Defendant F-WONG and thus are precluded from pursing any equitable remedies.

(i)      Waiver and Ratification/Consent.

Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations]. The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and 'doubtful cases will be decided against a waiver.'” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60.)

“Ratification of a fraudulent transaction can only be made where there is full knowledge of the facts constituting the fraud and depends primarily on the intention of the party defrauded as shown by his declarations, acts, and conduct. [Citation omitted.] It is necessary that ratification be with full knowledge of the party's rights and be clearly shown. Even in the case of deliberate election after discovery of fraud, equity may give relief against ratification by conduct that is merely thoughtless or inadvertent.” (Chung v. Johnston (1954) 128 Cal.App.2d 157, 164.) “Waiver of fraud is a question for the determination of the trier of fact.” (Chung, supra, 128 Cal.App.2d at 165.)

Here, LOAN OAK contends that Plaintiffs waived their claims against it as well as ratified the fraudulent conduct of F-WONG because they entered into an agreement with Defendant F-WONG for him to buy back the Property from them and by receiving over $2,000,000 from him. LOAN OAK presents evidence that Z-WANG reached an agreement with Defendant F-WONG to sell the Property and obtain cash to allow him to buy-back the Property at the purchase price of $4,950,000 in 2014; that in November 2015, Z-WANG received $932,000 from F-WONG; and that Z-WANG received another $1,119,000 in March or April of 2017 from F-WONG. (SSUMF Nos. 34, 43, and 51.) Plaintiff, however, disputes these facts and disputes that the agreement with F-WONG occurred in 2014. (See Response to SSUMF Nos. 34, 43, and 51.)

And, in any event, the evidence produced by LOAN OAK has nothing to do with Plaintiff’s intent. “Waiver always rests upon intent.” (DRG/Beverly Hills, supra, 30 Cal.App.4th at 60.) “The pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right.” (Id.) Ratification also depends on the intent of the defrauded party. (Chung, supra, 128 Cal.App.2d at 164.)

Accordingly, the Court finds that LOAN OAK failed to meet its initial burden as to waiver and ratification.

(ii)      Laches.

The defense of laches requires the party to “establish the existence of inexcusable delay in bringing an action and resultant prejudice to the defense.” (Ponce v. Graceous Navigation, Inc. (1981) 126 Cal.App.3d 823, 829.)

“Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances...” (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1417.)

LOAN OAK contends that Plaintiffs waived 4 years and 9 months after discovery of F-WONG’s fraud in June 2014 to file this action and that they entered into the “buy back” agreement with F-WONG in 2014 rather than timely file an action against F-WONG. However, as set forth above, Plaintiffs did not discover F-WONG’s fraud in June 2014 and the basis of their claims against Defendants in this action did not even occur until after June 2014. (See supra.) Further, Plaintiffs dispute that that the buy-back agreement with F-WONG occurred in 2014. (See supra.) Plaintiffs also present evidence that they discovered the loans secured by the Property only in early 2018 and promptly started looking for counsel to represent them. (See Z-WANG Decl., ¶¶ 34-36.)

Accordingly, in light of the above, the Court finds that LOAN OAK failed to establish that the doctrine of laches bars Plaintiff’s claims and that triable issues exist with respect to same.

(iii)     Unjust Enrichment.

Defendant LOAN OAK contends that Plaintiffs would be unjustly enriched if they were allowed to avoid its liens secured by the Property; that it is a bona fide encumbrancer who funded $4,415,000 without notice or knowledge of Plaintiffs’ claims; and that Plaintiffs would receive double recovery if they were allowed to avoid its lien since F-WONG paid them over $2,000,000 pursuant to the buy-back agreement.

Here, Defendant LOAN OAK’s Notice of Motion did not include the defense of unjust enrichment as a ground for summary adjudication. California Rules of Court, Rule 3.1350(b) states: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

Accordingly, because the Notice of Motion did not state that LOAN OAK was seeking summary adjudication as to the defense of unjust enrichment, the Court will not consider this as a ground for summary adjudication.

(iv)     Election of Remedies.

“[E]lection of remedies is the act of choosing between two or more concurrent but inconsistent remedies based upon the same state of facts.” (Baker v. Superior Ct. (1983) 150 Cal.App.3d 140, 144.)

Defendant LOAN OAK contends that Plaintiffs must elect their remedies between an action at law for damages, an equitable action to quiet title, or for an action for specific performance against F-WONG and that Plaintiffs have effectively elected their remedies by accepting over $2,000,000 from Defendant F-WONG.

Here, it is uncertain as to how this doctrine is a basis for summary adjudication on Plaintiff’s claims for quiet title, equitable lien, and injunction. “Ordinarily a plaintiff need not elect, and cannot be compelled to elect, between inconsistent remedies during the course of trial prior to judgment.” (Baker, supra, 150 Cal.App.3d at 144.)

Plaintiff, in Opposition, contends that receipt of money paid by F-WONG voluntarily is not a remedy at all and that the SAC does not even assert a cause of action for F-WONG to enforce the oral buyback agreement. This is true, the SAC does not assert a cause of action for specific performance against F-WONG.

The Court DENIES summary adjudication on the grounds that Plaintiff has elected his remedies.

Moving Party to give notice.