Nguyen v. Pham et al

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MEMORANDUM DECISION
RE MOTION FOR NEW TRIAL 	-1-
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
NGA TUY PHAM,
Debtor.
NGOC LAN THI NGUYEN,
Plaintiff,
vs.
NGA TUY PHAM, YEN CHUNG, KENNY HUNG
WAI NG, and QUAN THANH CHUNG,
Defendants.
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Case No. 08-30904 TEC
Chapter 7
Adv. Proc. No. 08-3073 TC
MEMORANDUM RE MOTION FOR NEW TRIAL RE PHASE I
The court tried Plaintiff’s claims against Yen Chung
separately from Plaintiff’s claims against Nga Pham. 	At the
conclusion of Phase I of trial, the court issued a decision in
favor of Defendant Chung, but did not enter judgment on that
decision. 	On September 25, 2009, the court conducted a hearing on
Plaintiff’s motion to have this court conduct a new trial on Phase
I, and/or to have this court amend its findings of fact and
conclusions of law regarding Phase I. 	Upon due consideration, and
Signed and Filed: October 14, 2009
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
October 15, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 08-03073 Doc# 87 Filed: 10/14/09 Entered: 10/15/09 15:01:07 Page 1 of 7

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MEMORANDUM DECISION
RE MOTION FOR NEW TRIAL 	-2-
for the reasons set forth below, I determine that Plaintiff’s
motion should be denied.
FACTS
Defendant Pham was a close friend of Plaintiff, and between
2002 and 2007 Pham borrowed a large sum of money from Plaintiff.
One such transaction occurred on January 20, 2004, when Pham
induced Plaintiff to purchase and to deliver to Pham a cashier’s
check in the amount of $8,500 payable to Pham’s daughter, Yen
Chung. 	On the next day, Yen Chung deposited the cashier’s check in
her account, then immediately gave Pham $1,500 cash and wrote
checks to Pham and the family laundry business totaling $5,000.
One month later, Pham directed Yen Chung to write a $2,000 check to
Tran Huynh. 	That check was used to purchase a bracelet for Yen
Chung and gold chains for Pham’s other relatives.
After Pham failed to repay the amounts owed Plaintiff and
filed a chapter 7 petition, Plaintiff filed the present action,
seeking, inter alia, to recover $8,500 from Yen Chung under a
theory of unjust enrichment or implied contract. 	In the decision
re Phase I, the court found that Yen Chung was not liable under
theories of unjust enrichment or implied contract: because Yen
Chung did not have beneficial use of the $8,500; because Yen Chung
never sought funds from Plaintiff, made no representations or
promises to Plaintiff, and engaged in no wrongful acts toward
Plaintiff; and because Pham never represented to Plaintiff that Yen
Chung would repay Plaintiff.
Plaintiff urges this court to grant a new trial and/or to
amend its findings of fact and conclusions of law regarding Phase I
of the trial for the following reasons. 	Plaintiff first urges that
Case: 08-03073 Doc# 87 Filed: 10/14/09 Entered: 10/15/09 15:01:07 Page 2 of 7

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MEMORANDUM DECISION
RE MOTION FOR NEW TRIAL 	-3-
she has newly discovered evidence in the form of the testimony of
Tran Huynh. 	Plaintiff next urges that the decision in Phase I was
against the weight of the evidence in the following respects:
(i) the court should have found Defendant Yen Chung liable in
implied contract because she received the bracelet without paying
for it; (ii) the court erred in finding that Pham did not promise
Plaintiff that Defendant Yen Chung would repay Plaintiff; (iii) the
court did not recognize that Pham had apparent authority to act on
behalf of Defendant Yen Chung in promising that Chung would repay
Plaintiff; and (iv) the court did not take proper account of the
fact that Pham altered a check from Plaintiff to change the amount
payable from $2,000 to $20,000.
DISCUSSION
1. 	Testimony of Tran Huynh. 	Assuming arguendo that the
identity of Mr. Huynh could not have been discovered in time to
introduce his testimony at Phase I of the trial, the discovery of
Huynh’s testimony is not a proper basis for a new trial, because it
would not change the result. 	The court is very familiar with
Huynh’s testimony, because it heard that testimony at Phase II of
the trial.
Ms. Pham and Defendant Yen Chung testified at Phase I that
they met with Huynh at the grand opening of his jewelry store on or
about February 20, 2004, at which time Yen Chung selected a
bracelet and paid for it with a $2,000 check drawn upon her
account. 	The same witnesses testified that the $2,000 check
represented the last of the proceeds of the $8,500 cashier’s check
of January 20, 2004 made payable to Chung but delivered to Pham.
These witnesses also testified that Pham had directed the
Case: 08-03073 Doc# 87 Filed: 10/14/09 Entered: 10/15/09 15:01:07 Page 3 of 7

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MEMORANDUM DECISION
RE MOTION FOR NEW TRIAL 	-4-
disposition of all the proceeds of the cashier’s check. 	The court
credited this testimony, and found that Defendant Yen Chung was not
liable to Plaintiff in implied contract, in part because she did
not enjoy the beneficial use of the proceeds of the cashier’s
check.
Huynh testified at Phase II that the grand opening of his
jewelry store did not occur until May 2004, that Pham delivered the
$2,000 check to him in a coffee shop on February 20, 2004, and that
he had no dealings with Chung. 	Plaintiff argues that Huynh’s
testimony is so inconsistent with the testimony of Pham and Chung
that it fatally damages the credibility of Pham and Chung.
Huynh’s testimony provides no basis to grant a new trial or to
amend the court’s prior findings of fact and conclusions of law.
Huynh’s testimony does not undermine the key finding that it
was Pham and not Chung who directed the use of the proceeds of the
cashier’s check. 	The only material difference between the
testimony of Pham and Chung at Phase I and Huynh’s testimony at
Phase II is that Huynh testified that he received the $2,000 check
from Pham, whereas Pham and Chung recollected that Chung had given
the check to Huynh. 	Huynh’s testimony is entirely consistent with
the court’s finding that it was Pham who directed the use of the
funds. 	Nor does the discrepancy between Huynh’s testimony and the
testimony of Pham and Chung indicate that Pham and Chung
intentionally lied. 	The events in question occurred more than five
years before trial and were unremarkable at the time.
2. 	Chung’s receipt of the bracelet. 	Plaintiff argues that
the court should amend its decision to find that Chung is liable in
implied contract because the evidence indicates that Chung received
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MEMORANDUM DECISION
RE MOTION FOR NEW TRIAL 	-5-
the bracelet without paying for it. 	This argument is unpersuasive.
In its prior decision, the court assumed that Chung received the
bracelet. 	The court found that Chung was not liable in implied
contract, because it was Pham who induced Plaintiff to provide the
cashier’s check, because Pham directed the use of those funds and
therefore enjoyed beneficial use of those funds, and because Chung
did not participate in any wrongful conduct toward Plaintiff. 	That
Pham had beneficial use of the $2,000 paid to Huynh is supported by
the testimony that Pham used that sum to buy gifts for other
relatives as well as for Chung. 	The present case is like that in
which a credit card holder uses a credit card to purchase a gift
for a third person and the third person does not engage in any
wrongful conduct toward the card issuer. 	In such circumstances,
the gift to the third party is a transfer independent of the credit
transaction between the card holder and the card issuer, and the
third party recipient of the gift is not liable in implied contract
if the card holder does not repay the card issuer. 	Rstmt. (Third)
of Restitution and Unjust Enrichment (Tentative Drafts) § 29, cmt.
a(6).
3. 	Pham’s promise that Chung would repay. 	Plaintiff has not
cited any evidence that causes this court to amend its finding that
Pham never represented to Plaintiff that Chung would repay
Plaintiff the amount of the cashier’s check.
4. 	Apparent authority. 	Plaintiff’s argument that Pham had
apparent authority to act for Chung in promising that Chung would
repay the amount of the cashier’s check is irrelevant, because the
court found that Pham made no such promise.
Case: 08-03073 Doc# 87 Filed: 10/14/09 Entered: 10/15/09 15:01:07 Page 5 of 7

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MEMORANDUM DECISION
RE MOTION FOR NEW TRIAL 	-6-
5. 	Alteration of check. 	The asserted alteration of the April
12, 2005 check is not a basis for new trial or amendment of the
court’s decision following Phase I, because the court finds that
Pham did not alter that check. 	See pages 9-10 of Memorandum re
Phase II of Trial.
**END OF MEMORANDUM DECISION**
Case: 08-03073 Doc# 87 Filed: 10/14/09 Entered: 10/15/09 15:01:07 Page 6 of 7

Court Service List
Robin E. Foor, Esq.
Law Offices of Robin E. Foor
2843 Alhambra Drive
Belmont, CA 94002
John Chow, Esq.
Roberto Ripamonti, Esq.
Tsao-Wu, Chow & Yee, LLP
685 Market Street, Suite 460
San Francisco, CA 94105
Case: 08-03073 Doc# 87 Filed: 10/14/09 Entered: 10/15/09 15:01:07 Page 7 of 7