Zuo v. Lu CA2/3

Filed 3/9/23 Zuo v. Lu CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JING ZUO, B321608

Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 18STCV07735
YUE LU,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Law Offices of Steve Luan and Steve Luan for Plaintiff and
Appellant.
Law Offices of Aijun Zhang and Aijun Zhang for Defendant
and Respondent.
_______________________________________
 INTRODUCTION

Plaintiff Jing Zuo sued defendants Yue Lu, Shi Qiang
Zhang,1 and L&L Flying Holding, Inc. for fraud, civil conspiracy,
money had and received, and open book account. After a six-day
bench trial, the court entered judgment in Lu’s favor on all of
Zuo’s claims. As to Zhang, the court entered judgment in Zuo’s
favor on her claims for fraud and money had and received, and it
entered judgment in Zhang’s favor on Zuo’s claims for civil
conspiracy and open book account.
Zuo appeals, challenging the court’s findings that Lu wasn’t
liable under any of the theories raised in Zuo’s complaint.
Although a reporter transcribed the proceedings at trial, Zuo
hasn’t provided a copy of the reporter’s transcripts or a suitable
substitute record. Because we lack an adequate record to review
Zuo’s claims raised on appeal, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND2

Zuo’s lawsuit arises out of her use of “an underground
banking network” to exchange United States currency into
Chinese Yuan, or “RMB,” and to transfer those converted funds to
a bank account in China.
In March 2018, Zuo’s niece met Lu at his store, L&L Flying
Furniture Store (L&L), where he offered to provide currency
exchange and money transfer services for a two percent
commission. Zuo decided to use Lu’s service and wrote him a

1 We sometimes collectively refer to Lu and Zhang as “defendants.”
2Because we lack an oral record of the proceedings, our factual
summary is taken from the court’s statement of decision.

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$10,000 check, which he deposited. Later, Zuo’s money—less Lu’s
two percent commission—was deposited as RMB in Zuo’s bank
account in China.
Because her transaction was successful, Zuo sought to
convert and transfer more money through Lu. She asked Lu to
process $500,000, but he refused, telling her someone else would
need to handle a conversion and transfer of such a large sum of
money.
In May 2018, Zuo decided to convert and transfer $250,000
through Lu. She gave her niece two blank checks, which the niece
dropped off at Lu’s office. Lu told the niece he would add the
necessary information to the checks before depositing them.
Only one of Lu’s checks was deposited. That check had been
made payable to Zhang for $120,000, and it was deposited into
Zhang’s bank account. About one week later, Lu told Zuo’s niece
that he was worried Zhang wouldn’t complete the transaction. Lu
told the niece to contact Zuo’s bank to stop payment on the
$120,000 check. When Zuo’s niece contacted the bank, the
$120,000 had already been withdrawn. Zuo never recovered that
money.
Lu knows Zhang through their work in the furniture
business. Zhang had also converted and transferred money for Lu
in the past. At the time Zuo was using Lu to convert and transfer
money to China, Zhang worked as a “tour guide for Chinese
nationals visiting Southern California.” Zhang received Zuo’s
check for $120,000 and, after depositing the check in his account,
gave the money to one of his clients to use to gamble in Las
Vegas. That client was supposed to deposit an equivalent amount
of RMB into Zuo’s bank account in China, but he never did.

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 In December 2018, Zuo sued Lu, Zhang, and L&L for fraud,
civil conspiracy, money had and received, and open book account.
Zuo alleged L&L was Lu’s and Zhang’s alter ego.
The court conducted a 6-day bench trial in January 2022. A
reporter transcribed the proceedings at trial. Zuo, Lu, Zhang, and
Zuo’s niece testified at trial, and several of Zuo’s exhibits were
admitted into evidence.
In March 2022, the court issued a seven-page statement of
decision. The court found for Lu, and against Zuo, on all of Zuo’s
claims. As to Zhang, the court found for Zuo on her claims for
fraud and money had and received, and it found for Zhang on
Zuo’s claims for civil conspiracy and open book account.3
With respect to Zuo’s fraud, civil conspiracy, and money
had and received claims, the court found all parties, including
Zuo, “knowingly participated in an unlawful scheme.” As to Lu,
the court found Zuo failed to prove he intended to steal Zuo’s
money or conspired with Zhang to do so. The court found there
was conflicting testimony about whether Lu and Zhang were
“business partners.” In any event, the court found Lu acted in
good faith when he referred Zuo to Zhang and later tried to help
Zuo stop payment on the check Zhang deposited.
As for Zuo’s claim for open book account, the court found
Zuo failed to prove the underlying transaction “was handled
through … Lu’s book account, as opposed to him merely acting as
an intermediary” for Zuo and Zhang.
In May 2022, the court entered judgment in Lu’s favor on
all of Zuo’s claims, in Zuo’s favor and against Zhang on Zuo’s

3The court did not make any findings as to defendant L&L Flying
Holding, Inc.

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fraud and money had and received claims, and in Zhang’s favor
on Zuo’s remaining claims. In total, the court awarded Zuo
$165,893.87 in damages and $12,635.08 in costs against Zhang.
Zuo appeals.

DISCUSSION

A judgment or order challenged on appeal is presumed
correct, and it is the appellant’s burden to affirmatively
demonstrate error. (Dietz v. Meisenheimer & Herron (2009) 177
Cal.App.4th 771, 799 (Dietz).) “ ‘ “ ‘ “All intendments and
presumptions are indulged to support [the judgment] on matters
as to which the record is silent, and error must be affirmatively
shown.” ’ [Citation.]” ’ ” (Taylor v. Nabors Drilling USA, LP
(2014) 222 Cal.App.4th 1228, 1250.) An appellant’s failure to
provide an adequate record requires the reviewing court to
resolve any issues that rely on the missing record to be resolved
against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281,
1295–1296 (Maria P.); see Oliveira v. Kiesler (2012) 206
Cal.App.4th 1349, 1362 (Oliveira).)
Appellate courts have repeatedly refused “to reach the
merits of an appellant’s claims because no reporter’s transcript of
a pertinent proceeding or a suitable substitute was provided.
(Maria P. v. Riles[, supra,] 43 Cal.3d [at pp.] 1295–1296 [attorney
fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574–
575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re
Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether
counsel was waived and the minor consented to informal
adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79
Cal.App.4th 440, 447 [trial transcript when attorney fees sought];
Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge
hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit

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motion where trial transcript not provided]; Null v. City of Los
Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript
fails to reflect content of special instructions]; Buckhart v. San
Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032,
1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi
(1985) 163 Cal.App.3d 383, 385–386 [motion to dissolve
preliminary injunction hearing]; Rossiter v. Benoit (1979) 88
Cal.App.3d 706, 713–714 [demurrer hearing]; Calhoun v.
Hildebrandt (1964) 230 Cal.App.2d 70, 71–73 [transcript of
argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d
460, 462 [failure to secure reporter’s transcript [or] settled
statement].)” (Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181, 186–187.)
Most of Zuo’s claims on appeal attack the factual bases for
the court’s determination that Zuo failed to prove Lu was liable
for fraud and civil conspiracy. Zuo’s arguments focus on the
court’s finding that there was insufficient evidence to prove Lu
intended to steal from, or otherwise defraud, Zuo. For instance,
Zuo contends the “facts of this matter have proven that [Lu] must
be liable because he committed fraud in inducing [Zuo] to use his
foreign currency exchange service … .” (Bold and underlining
omitted.) Likewise, Zuo argues she proved her fraud claim
because she presented evidence that Lu withheld critical
information to convince her to use his underground banking
system. Zuo also contends the court’s finding that she acted with
unclean hands by knowingly engaging in an illegal transaction is
not supported by the record. Zuo, however, has not provided an
oral record of the proceedings, including reporter’s transcripts or
a suitable substitute from the six-day bench trial. As we explain,

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Zuo’s failure to supply a complete record is fatal to her claims on
appeal.
Whether Lu intended to steal from, or to defraud, Zuo is a
factual question that we review for substantial evidence. (See
Nautilus, Inc. v. Yang (2017) 11 Cal.App.5th 33, 40 [“Whether a
transfer is made with fraudulent intent and whether a transferee
acted in good faith” are questions of fact]; Brawerman v. Loeb &
Loeb LLP (2022) 81 Cal.App.5th 1106, 1116 [questions of intent
and purpose are ordinarily questions of fact].) Similarly, whether
someone acted with unclean hands is a question of fact. (Kendall-
Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th
970, 978 [“Whether the doctrine of unclean hands applies is a
question of fact.”].) “In reviewing the evidence, we examine the
entire record to determine whether there is any substantial
evidence—contradicted or uncontradicted—to support the trial
court’s findings. [Citation.] We must accept as true all evidence
supporting the trial court’s findings, resolving every conflict in
favor of the judgment.” (Curcio v. Pels (2020) 47 Cal.App.5th 1,
11–12.)
Without an oral record of the bench trial, we are unable to
examine what evidence, if any, would support a finding that Lu
intended to steal from or defraud Zuo. Indeed, according to the
court’s statement of decision, there was evidence that Lu acted in
good faith during his dealings with Zuo and lacked the intent to
steal from her. Since Zuo has failed to provide us with an
adequate record of the proceedings at trial, we must presume
substantial evidence supports the court’s finding that Lu lacked
the intent necessary to establish any of Zuo’s claims against him.
(Maria P., supra, 43 Cal.3d at pp. 1295–1296.) For the same
reason, we must presume the court properly found Zuo acted with

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unclean hands when she engaged Lu to use an illegal banking
system to convert her money and transfer it to a bank account in
China. (Ibid.)
That Zuo has provided us with some documents she claims
were admitted at trial does not mean we have an adequate record
to review her claims on appeal. First, none of the documents
included in the appellant’s appendix include a court stamp
showing they were admitted as exhibits at trial. Although the
court’s minute orders indicate several of Zuo’s exhibits were
admitted, Zuo has not established the documents included in the
appellant’s appendix are the same exhibits that were admitted at
trial. In any event, even if we were to assume the documents
included in the appellate record were admitted at trial, we still
lack transcripts of the witnesses’ testimony from trial. As we
explained above, we cannot disturb the court’s findings or
judgment without a complete record of the trial proceedings.
(Oliveira, supra, 206 Cal.App.4th at p. 1362 [“ ‘The absence of a
record concerning what actually occurred at the trial precludes a
determination that the trial court [erred].’ ”].)
Finally, we reject Zuo’s claim that Lu should be held jointly
and severally liable for Zuo’s costs of suit. Under Code of Civil
Procedure section 1032, “a prevailing party is entitled as a matter
of right to recover costs in any action or proceeding.” (Id., subd.
(b).) That statute defines a prevailing party as “the party with a
net monetary recovery, a defendant in whose favor a dismissal is
entered, a defendant where neither plaintiff nor defendant
obtains any relief, and a defendant as against those plaintiffs
who do not recover any relief against that defendant.” (Id., subd.
(a)(4).)

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 The court entered judgment in Lu’s favor on all of Zuo’s
claims, and Zuo recovered nothing from Lu. Thus, as between Lu
and Zuo, Lu is the prevailing party. (Code Civ. Proc., § 1032,
subd. (a)(4).) Consequently, Zuo is not entitled to recover any
costs from Lu.

DISPOSITION

The judgment is affirmed. Yue Lu shall recover his costs on
appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

NGUYEN, (KIM) J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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