Judge Theresa M. Traber, Case BC715362 2023-01-12 Tentative Ruling

MOVING PARTY: Plaintiffs and Cross-Defendants Vichit, Sudatip, and Somsak Tilakamonkul

RESPONDING PARTY(S): Defendant and Cross-Complainant T-Team Investment, LLC.

This is a dispute involving a partnership in which Plaintiffs sought to quiet title, dissolve a partnership, and partition and sell the partnership property, among other causes of action. Plaintiffs’ Second Amended Complaint asserts claims for quiet title, breach of oral contract, negligence, partnership accounting, partnership dissolution and accounting, partition and sale of partnership property, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing.

In its Second Amended Cross-Complaint, T-Team Investments, LLC asserts causes of action for declaratory relief, quiet title, breach of contract, account stated, and goods and services rendered.

Plaintiffs and Cross-Defendants move for summary adjudication on the fourth, fifth, seventh, and eighth causes of action in the Second Amended Cross-Complaint (SAXC.)

Plaintiffs request that the Court take judicial notice of (1) the Second Amended Cross-Complaint in this action; (2) the Court’s June 30, 2022 statement of decision and September 1, 2022 Amendment to Statement of Decision; (3) Official Los Angeles County Recorder record No. 20071236815, Grant Deed from T-Team to Somsak Tilakamonkul, recorded 5/22/2007; (4) Official Los Angeles County Recorder record No. 20071424017, Trust Deed on 4201 Ransom Street, Long Beach, CA, signed by Somsak Tilakamonkul, recorded 6/13/2007; (5) Statement of Trial Testimony of Virut and Narlong Tilakamonkul filed in this case on 4/1/2022; (6) Trial exhibit No. 43 in this case; (7) Trial Exhibit No. 333 in this case; (8) Corporations Code sections 17343(a)(1) and (3); (9) The answers of Cross-Defendants Vichit, Sudatip, and Somsak Tilakamonkul to the Second Amended Cross-Complaint; (10) Official San Diego County Recorder record No. 2006-0612507, Grant Deed to Virut Tilakamonkul on 4941 Mt. Bigelow, San Diego, CA., filed on 8/28/2006; (11) Trial Exhibit No. 304 in this case; (12) Trial Exhibit No. 307 in this case; and (13) Defendants’ opposition to Plaintiff’s ex parte application to continue Temporary Restraining Order filed on 08/01/2022.

Plaintiffs’ Requests Nos. 1 and 2 are GRANTED pursuant to Evidence Code section 452(d) (court records). The remainder of Plaintiffs’ requests are DENIED as irrelevant to the Court’s ruling. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Cross-Complainant objects to the Declaration of Vichit Tilakamonkul in Support of Plaintiffs’ Reply brief. As the Court does not rely on this declaration in reaching its decision on these issues, the Court declines to rule on Cross-Complainant’s objections. (Code Civ. Proc. § 437c(q).)

Cross-Defendants filed a document with their reply brief entitled “Separate Statement of Moving Parties Response to Opposition to Plaintiffs’ Motion for Summary Adjudication.” This document is not authorized by the Code of Civil Procedure or the California Rules of Court. (Code Civ. Proc. § 437c; Cal. Rules of Court Rule 3.1350.) The Court therefore refuses to consider this document.

On July 25, 2018, Plaintiff Vichit Tilakamonkul (Vichit)[1] filed a verified complaint for damages and other relief against Defendants Vichai Tilakamonkul, Virut Tilakamonkul, Somsak Tilakamonkul, Marasri (Mary) Tilakamonkul, Narong Tilakamonkun, Sumeth Tilakamonkul,[2] and others claiming an interest in certain described real and personal property. In the initial complaint, Vichit asserted claims for breach of written contract, partnership accounting, dissolution of partnership and accounting, conversion, breach of fiduciary duty, constructive fraud, and partition and sale and accounting.

After several revised iterations of the complaint, the Second Amended Complaint was filed on August 21, 2019, which was the operative complaint at trial. In that pleading, Vichit Tilakamonkul joined with brother and former defendant, Somsak Tilakamonkul (jointly "Plaintiffs") to assert twelve causes of action against their brothers, Defendants Vichai, Virut, Narlong, Sumeth, and Pramorte, as well as Siriratn Tilakamonkul and several entities owned by some or all of the seven Tilakamonkul brothers. These entity defendants included Royal Thai Cuisine II, Inc. ("RT II"), Royal Thai Cuisine IV, Inc. ("RT IV"), and T-Team Investments, LLC. ("T-Team"). The Second Amended Complaint asserted claims for quiet title, breach of oral contract, negligence, partnership accounting, partnership dissolution and accounting, partition and sale of partnership property, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing.

Various defendants filed Cross-complaints in the action. By the time of trial. there were three at issue. In its Second Amended Cross-Complaint, filed on March 25, 2021, Defendant T-Team sues Plaintiffs Vichit and Somsak, as well as Sudatip Tilakamonkul, who is also known as Dawn Tilakamonkul, alleging causes of action for declaratory relief, quiet title, breach of contract, account stated, and goods and services rendered. T-Team's cross-complaint focuses on the ownership of real property located at 4941 Mount Bigelow in San Diego ("Mt. Bigelow Property") and at 4199 and 4201 Ransom Street in Long Beach ("Ransom Properties"), and the related issue of whether funds paid to Vichit in 2007 constituted a buyout of his interest or a loan still owed by Vichit to T-Team. RT II intervened in the action on or about March 12, 2019 to bring a claim for declaratory relief against Plaintiffs, seeking a judgment regarding the ownership of the Royal Thai Cuisine restaurant in Newport Beach. Further, Defendants Vichai, Virut, Narlong and Sumeth cross-complained against Plaintiffs for declaratory relief on June 30, 2018, requesting a declaration that Plaintiffs own no part of the restaurant businesses or real property they claim to own jointly with the five defendant brothers.

On October 1, 2020, the Court bifurcated trial in this matter and ordered that the following equitable causes of action in the Second Amended Complaint would be tried first to the Court: (1) quiet title, (8) partnership accounting, (9) partnership dissolution and accounting, (10) partition and sale of partnership property, and (11) breach of fiduciary duty. (10/1/20 Order, p. 10.) In addition, the Court ordered that the following equitable causes of action in the Second Amended Cross-Complaint would be tried in the first-phase bench trial: the first, third and sixth causes of action for declaratory relief and the second cause of action for quiet title. The Court ordered that all other causes of action would be tried in a second phase, with the legal claims being tried to a jury along with an intertwined equitable cause of action that would be tried to the Court.

At the close of the first phase of trial, the Court issued its statement of decision, finding that Plaintiffs did not establish that RT II, RT IV, or RT V are partnerships, but rather that the evidence shows they are and have been properly functioning corporations, duly organized under the laws of the state. (Amended Statement of Decision.) The Court therefore declined to address Plaintiffs’ contentions that they suffered damages because of their partners’ alleged breaches of fiduciary duty. (Id.)

The Court also concluded that Plaintiffs demonstrated by clear and convincing evidence that the Ransom and Mt. Bigelow properties were “jointly owned by all seven brothers until their transfer to T-Team, which has been jointly owned by all seven brothers,” but not that they possessed any ownership share in the Georgia Sue property, which has been continuously owned by Sumeth and Virut alone. (Original Final Statement of Decision.) The Court modified its statement of decision in this respect on October 11, 2022 to clarify that each of the seven brothers owns a beneficial interest in the Ransom and Mt. Bigelow properties and that they are each entitled to a one-seventh share of these properties. (Amended Statement of Decision; see RJN Exh. B.)

The Court denied Defendants’ request for declaratory relief to the effect that Vichit’s interest in the family business was bought out in 2007 and that Somsak’s ownership rights were terminated in 2014 because of his wife Pankee’s alleged misappropriation of corporate funds. (Amended Statement of Decision.) The Court also rejected Defendants’ affirmative defenses based on statute of limitations, laches, estoppel, and unclean hands, finding that the facts did not support the application of these defenses. (Id.)

Plaintiffs now move for summary adjudication on the fourth, fifth, seventh, and eighth causes of action in the Second Amended Cross-Complaint prior to commencement of the second phase of trial.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the (cross-)defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff or cross-complainant is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

On December 13, 2022, this Court ruled that Cross-Complainant T-Team’s fourth cause of action for breach of contract and fifth cause of action for account stated were disposed of by the Court’s Amended Statement of Decision following the trial of the equitable claims and defenses in this action. (December 13, 2022 Minute Order.) Therefore, the only issues remaining on this motion are the seventh cause of action for breach of contract relating to the Mt. Bigelow property and the eighth cause of action for goods and services rendered.

Cross-Defendants move for summary adjudication on the seventh cause of action for breach of contract in connection with the Mt. Bigelow property.

The seventh cause of action alleges that Cross-Defendants entered into an oral contract with Cross-Complainant T-Team to rent the Mt. Bigelow property for Cross-Defendants to reside in. (SAXC ¶ 89, 91.) The Court addressed this allegation in its Amended Statement of Decision, ruling that Vichit owned a one-seventh beneficial interest in the Mt. Bigelow property. (Amended Statement of Decision p. 17.) As Cross-Complainant concedes, “[i]t is the general rule that each tenant in common has a right to occupy the common property, and, generally speaking, one such tenant cannot recover rent from the other tenant.” (Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176.) Cross-Defendants have demonstrated on this basis that Cross-Complainant cannot prevail on the seventh cause of action. The burden therefore shifts to Cross-Complainant to establish a triable issue of fact.

In opposition to this motion, Cross-Complainant contends that, although the Court ruled that Vichit held a beneficial interest in the property, he never had an interest as a tenant in common or had any right to possession of the property or any right to control it. Cross-Complainant is incorrect. The Court ruled on October 11 that each of the seven brothers had a one-seventh undivided interest in the Mt. Bigelow property. The brothers are therefore, definitionally at least tenants in common of the Mt. Bigelow property. (Civ. Code § 685.)

Cross-Complainant next argues that even if Cross-Defendants were tenants in common, Vichit can still be charged rent because he allegedly ousted Cross-Complainant by refusing to leave the property. It is true that the rule that a tenant in common cannot recover rent from another tenant in common does not apply when one cotenant wrongfully ousts another. (Brunscher, supra, 164 Cal.App.2d at 176.) However, ouster requires that another cotenant be dispossessed or excluded from the property. (See, e.g, Estate of Hughes (1992) 5 Cal.App.4th 1607, 1611-12.) Cross-Complainant’s conclusory assertion that Vichit’s refusal to leave the property constitutes an ouster, where Cross-Complainant offers no evidence nor even allegations of any dispossession of or exclusion from the property by Vichit, is not remotely sufficient to establish a triable issue of fact on this basis.

Finally, Cross-Complainant argues that Vichit could still be charged rent because he allegedly agreed, according to Cross-Complainant, to pay rent at a rate of $500 per month to reside on the Mt. Bigelow property. At trial, Virut testified that he gave permission for Vichit to live at the Mt. Bigelow property, and that Vichit and his family did not pay rent. (Trial Transcript p. 49:24-26; 54:16-18.) Virut did not directly testify as to the existence of any agreement by Vichit to pay rent, and the testimony that he gave “permission” appears to undermine such a claim. Now, in opposition to this motion, Virut states in a declaration under penalty of perjury that Virut and Sumeth agreed, “on behalf of T-Team,” that Vichit and his family could occupy a room in the Mt. Bigelow property, and that Vichit agreed to pay rent. (Declaration of Virut Tilakamonkul ISO Opp. ¶ 11.) In reply, Cross-Defendants object to this new testimony as improperly contradicting prior testimony to create a triable issue of fact. (See, e.g., Peach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.) Cross-Defendants overstate their case in this respect. Virut’s previous testimony was silent on the issue of this alleged rental agreement and does suggest that there was permission granted rather than an agreement reached. But the declaration in support of Cross-Complainant’s opposition does not directly contradict the previous testimony, but rather presents new facts on issues not specifically raised previously.

That said, the question remains of whether Virut’s testimony is sufficient to establish a triable issue of fact as to whether there was an enforceable contract for a lease agreement between Cross-Complainant and Cross-Defendants. The Court concludes that this evidence is not sufficient. An enforceable contract requires that the parties be capable of contracting, that the parties consent to the contract, that the purpose of the contract is lawful, and that the contract has valid consideration. (Civ. Code § 1550.) “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” (Civ. Code § 1605.)

Here, the Court found in its Amended Statement of Decision that Vichit held a one-seventh beneficial interest in the Mt. Bigelow property and was therefore entitled to reside at that property as a matter of law. It therefore follows that Cross-Complainant lacked the lawful authority to exclude Vichit or his family from the Mt. Bigelow property or to require him to pay rent to reside on the property. Thus, even under the facts asserted, there was no consideration for the alleged rental agreement because Cross-Complainant was not entitled to receive rent from Vichit, nor was Vichit legally obligated to pay rent as a condition of remaining on the property, because Cross-Complainant could not lawfully exclude him from the property. As Cross-Complainant cannot show consideration for the contract alleged as a matter of law, it follows that Cross-Complainant has failed to establish a triable issue of fact as to the existence of an enforceable rental agreement.

The Court finds, therefore, that because Cross-Defendants have established that Cross-Complainant cannot prevail on this cause of action and Cross-Complainant has failed to establish a triable issue of fact, summary adjudication is warranted on the seventh cause of action for breach of contract.

The parties agree that the eighth cause of action survives or fails with the seventh cause of action. Therefore, as the Court has concluded that summary adjudication is warranted for the seventh cause of action, summary adjudication is likewise warranted for the eighth cause of action.

Accordingly, Cross-Defendants’ Motion for Summary Adjudication is GRANTED in its entirety.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Most of the parties are brothers with the same or nearly identical last names. for clarity, the Court refers to each brother by his first name but means no disrespect to the parties in doing so.

[2] Where a party's name has been misspelled in an original pleading, the Court has simply corrected the spelling without restating the original misspelling to denote the name under which the party was erroneously sued.