Filed 2/28/13 Truong v. Truong CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


DANG NGUYEN TRUONG,

     Plaintiff and Respondent,                                         G046555

         v.                                                            (Super. Ct. No. 30-2010-00344972)

THINH TRUONG et al.,                                                   OPINION

     Defendants and Appellants.



                   Appeal from a judgment of the Superior Court of Orange County, Franz E.
Miller, Judge. Affirmed.
                   O’Rourke, Fong & Manoukian, and Marina Manoukian, for Defendants and
Appellants.
                   Law Office of John Derrick, and John Derrick, for Plaintiff and
Respondent.
                                          *                  *                  *
               Thinh Truong, VietEagle, and VietEagle Seafoods (collectively Thinh)1
appeal from a judgment in a bench trial in favor of Dang Nguyen Truong for $116,000 on

contract causes of action. Thinh contends the trial court erred by allowing Dang to
amend his complaint to add the contract causes of action to conform to the proof at trial.
Thinh also challenges the sufficiency of the evidence to support the judgment in Dang’s
favor. For the reasons discussed below, we affirm the judgment.
                                             I
                    FACTUAL AND PROCEDURAL BACKGROUND
A.     The Business Dispute
               Dang and Thinh, who are first cousins, formed VietEagle Seafoods
(VietEagle) in 2004 to import seafood from Vietnam. Because of his graduate degree in
business administration, Dang’s duties at VietEagle included setting up the business,
bookkeeping, deliveries, and inventory control. The cousins agreed Dang would advance
all start-up costs and be reimbursed once the business developed a positive cash flow.
               Thinh’s business duties centered on VietEagle’s seafood products because
he had a 30-year relationship with a seafood exporter in Vietnam named Thanh Quang
Nguyen. Thinh and Thanh had been classmates and neighbors in Vietnam, and the two

were like brothers, while Dang only knew Thanh through Thinh. In March 2006, Thanh
visited Thinh and Dang in the United States to discuss expanding his seafood factory in
Vietnam. In June 2006, Dang paid Thanh a return visit in Vietnam, and agreed to lend
Thanh $100,000 at 8 percent interest per year. Dang obtained the funds using his home
equity line of credit.


       1      Because the parties and an important nonparty share the same last or middle
names, and the trial court and counsel used their first names for ease of reference in the
trial below, we do the same on appeal and intend no disrespect.

                                             2
             Dang and Thinh agreed the loan would benefit VietEagle through access to
Thanh’s increased seafood production, but the pair also agreed Dang’s loan to Thanh was
personal in nature and not a VietEagle liability. Nevertheless, because Dang and his wife
were in Vietnam and Dang’s bank required a customer wiring funds internationally to be
physically present, Dang remotely transferred $100,000 to the VietEagle business

account and Thinh wired that sum to Thanh in Vietnam.
             Dang and Thinh soon parted ways over Thinh’s dissatisfaction with Dang’s
poor accounting management. Thinh continued to request additional accounting records

after Dang left VietEagle in November 2007, but Dang responded he already had turned
over everything he possessed.
             Not long after this accounting dispute, Thinh and Thanh discussed

transferring Thanh’s loan repayment obligation to Thinh and VietEagle, or otherwise
facilitating Thanh’s loan repayment. Ultimately, Thanh agreed to send seafood exports to
Thinh and VietEagle, but rather than pay Thanh for the seafood, Thinh would pay Dang
the principal and interest Thanh owed Dang. Thinh viewed the arrangement as leverage
to extract more information from Dang in their accounting dispute.
             Dang did not know of Thinh and Thanh’s arrangement until Thinh asked

Dang in an August 2008 e-mail for more financial documents regarding VietEagle. By
the time Thinh told Dang about the arrangement, Thinh had received the entire loan
amount from Thanh in the form of product credits.

              In February 2009, Dang met Thanh in Vietnam, inquired about the loan,
and Thanh told Dang he had paid the money to Thinh to repay Dang, with interest
exceeding 8 percent. In March 2009, Dang e-mailed Thinh that he knew Thinh and

Thanh settled the $100,000 loan, that Thinh could deduct whatever money he thought



                                            3
Dang owed VietEagle from the loan repayment, and that it was urgent Thinh respond
because Dang was going to lose his home to foreclosure. Thinh did not reply.
             Dang grew hopeful in May 2009 when he learned from his father that
Thinh wanted to meet to resolve the matter. Dang again e-mailed Thinh, and this time
Thinh responded, instructing Dang to bring various financial documents when they met.

Dang replied he no longer had the documents and that a mutual cousin named Ahn Ba
was holding onto them. Thinh and Dang agreed to meet at Thinh’s office in mid-May,
but when Dang arrived he found Thinh’s office closed for the day and Thinh did not

answer his phone.
             Over the course of that summer, Dang corresponded with Thinh and sent
him various financial records, but Thinh remained dissatisfied. In late September 2009,

Thinh’s secretary e-mailed Thanh to complain Dang failed to resolve the remaining
accounting issues with VietEagle, and therefore Thinh did not intend to repay Dang’s
loan as they had agreed in 2008. But three days later, in early October 2009, Thinh
finally met with Dang, who was accompanied by his wife and father, and informed Dang
he would release Thanh’s funds if he (Thinh) and Dang resolved their accounting issue to
Thinh’s satisfaction. Thinh admitted he had received and still possessed the loan

reimbursement from Thanh, but emphasized he would not release the money until they
settled the accounting issue. Dang explained he was in financial trouble and suggested
Thinh repay part of the loan until the two could settle the disputed amount. Thinh

refused, and Dang and his wife subsequently lost their home to foreclosure in 2010.
             In the meantime, however, Dang’s wife e-mailed both Thinh and Thanh in
late October to seek a resolution. Thanh replied he had paid off the loan by paying Thinh

and VietEagle, and he insisted he should no longer be bothered about the matter. Thinh



                                            4
reaffirmed to Dang’s wife that he would not release the funds until he and Dang settled
their accounting differences. Dang and Thinh met again in mid-November 2009 and,
after reviewing their accounting dispute, including how much money Dang had put into
VietEagle and how much he had taken out, the pair agreed that Dang owed VietEagle
$8,000. Still, Thinh hedged that he would not accept this figure until he could verify

certain transactions, and Thinh rose from his seat to leave the meeting. Dang implored
Thinh to discuss repayment of the loan, but Thinh dismissed Dang saying he would meet
Dang the next day at the bank to deal with it. Thinh did not appear at the bank and never

repaid Dang. Instead, in December 2009, Thinh sent two payments to Thanh’s company
totaling $116,000, corresponding exactly to the amount owed to Dang at 8 percent
interest.

B.     The Trial
              Dang filed suit against Thinh and VietEagle to recover the $116,000 on
theories of conversion, fraud, and breach of fiduciary duty, and he also alleged Thinh
defamed him. Thinh filed a cross-complaint alleging causes of action for breach of
contract, fraud, conversion, and intentional interference with economic relations based on
Dang’s accounting work for VietEagle, and Thinh also alleged Dang defamed him.

              In a bench trial lasting several days, the trial court found Dang owed Thinh
$33,324.37 under a conversion theory for his accounting missteps, but rejected the rest of
Thinh’s allegations. Dang does not appeal the $33,324.37 judgment in Thinh’s favor.
              At the close of evidence, the trial court expressed skepticism that Dang’s
tort claims fit any of the facts litigated at trial. The court noted the facts alleged in
Dang’s complaint appeared consistent with contract claims instead of tort claims,
specifically breach of a suretyship agreement, breach of contract under a third party



                                               5
beneficiary theory, and promissory estoppel. The trial court invited Dang to file a motion
to amend his complaint to conform to the proof presented at trial, and asked each side to
submit briefs on these new issues within two weeks. The trial court also allowed the
parties another week to respond to new briefing.
              After reviewing the party’s submissions and hearing further argument, the

trial court granted Dang’s motion to amend his complaint to conform to the proof at trial,
adding the suretyship, third party beneficiary, and promissory estoppel causes of action.
The court concluded the amendment did not “unfair[ly] surprise or prejudice [the]

defendant” because the underlying facts remained “virtually identical” and Dang had
“discussed breach of contract theory in his trial brief.”
              Ruling on the merits, the trial court found for Dang on all three contract-

based causes of action and entered judgment in the amount of $116,000, plus $7,776 in
costs, for a total of $123,776. The court made a factual finding that “Thinh lied about
virtually every point that supported his position. His falsehoods were palpable.”
Similarly, the court observed Thinh “was just hopelessly either contradictory in his
statements or his explanations strained credulity to the limits even with the assistance of
[his lawyer]. I [recorded] several times in my notes how desperately she’s leading him to

try to say something that makes sense. He just couldn’t do it. And that’s why in terms of
virtually all of the testimony that comes to a dispute between what Mr. Dang says and
what Mr. Thinh says, I will choose to believe Mr. Dang.” Thinh now appeals.




                                              6
                                              II
                                       DISCUSSION
A.     Issues and Standard of Review
               Thinh contends the trial court erred by allowing Dang to amend his
complaint to conform to the proof at trial. A trial court may allow amendment of a

pleading at any time up to and including trial. (Code Civ. Proc., §§ 576, 473,
subd. (a)(1).) “Leave to amend to conform to proof at trial ordinarily should be liberally
granted unless the opposing party would be prejudiced by the amendment.” (Faigin v.

Signature Group Holdings, Inc. (2012) 211 Cal.App.4th 726, 736 (Faigin).) “Leave to
amend a complaint at trial is properly denied, however, if the proposed amendment raises
new issues that the defendant has had no opportunity to defend,” or if the material facts

are undisputed and the proposed amendment as a matter of law “would not establish a
basis for liability.” (Ibid.)
               Thinh also challenges the sufficiency of the evidence to support judgment
in Dang’s favor on any of the newly amended contract theories. A “challenge to the
granting of leave to amend the complaint based on insufficiency of the evidence . . .
amounts to a substantial evidence challenge.” (Faigin, supra, 211 Cal.App.4th at p. 736.)

“Substantial evidence is evidence that a rational trier of fact could find to be reasonable,
credible and of solid value. We view the evidence in the light most favorable to the
judgment and accept as true all evidence tending to support the judgment, including all

facts that reasonably can be deduced from the evidence. We affirm the judgment if an
examination of the entire record viewed in this light discloses substantial evidence to
support the judgment.” (Ibid.)




                                              7
B.     Substantial Evidence Supports the Existence of a Third Party Beneficiary Contract
              For ease of reference, we first address Thinh’s argument the evidence does
not support the judgment on any of the contract theories the trial court allowed Dang to
assert by amendment. The trial court did not cumulate individual damage awards on each
of three separate contract theories, but instead concluded Dang was entitled to one award

of $116,000, whether based on a surety agreement, a third party beneficiary contract, or
promissory estoppel.
              We briefly review the nature of each of these three contract theories. A

surety or guarantor is one who promises to answer for the debt of another. (Civ. Code,
§ 2787.) Where no conditions are specified, the guarantor becomes liable when the
principal obligation matures, and the creditor need not first exhaust his remedies against

the principal debtor. (United California Bank v. Maltzman (1974) 44 Cal.App.3d 41, 54;
Civ. Code, § 2845.) A third party beneficiary, as the name implies, is an intended
beneficiary of contract made by others. “A third party beneficiary may enforce a contract
made expressly for his or her benefit,” but has “no right to collect anything but those
benefits the contracting parties agreed to confer upon [him or her].” (Sessions Payroll
Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 680.) Relying

on promissory estoppel principles, Dang also asserted Thinh and Thanh each promised to
pay him back the funds he lent Thanh. “‘Promissory estoppel is “a doctrine which
employs equitable principles to satisfy the requirement that consideration must be given

in exchange for the promise sought to be enforced.” [Citation.]’” (US Ecology, Inc. v.
State of California (2005) 129 Cal.App.4th 887, 901-902.)
              Substantial evidence supports the conclusion Thinh and Thanh intended

Dang as a third party beneficiary of Thanh’s agreement to ship seafood to Thinh on



                                             8
credit. Thinh explained in his pretrial brief: “In August 2008, Thanh suggested to Thinh
that he [Thanh] can repay Dang by sending products to [VietEagle] and [VietEagle],
instead of paying Thanh, to pay [sic] Dang as payment towards the loan. Thinh . . .
decided that he would try to work with Dang to get records [from Dang’s former
accounting stint at VietEagle] and initially accepted this suggestion.” This account

mirrored Thanh’s deposition testimony acknowledging an agreement with Thanh to pay
Dang from the proceeds of seafood Thanh shipped to Thinh. And Thinh reiterated the
existence of the agreement several times in his trial testimony. For example, he admitted

Thanh agreed that “instead of paying him for the products [from] Vietnam, just give the
money to Dang here.”
              In an extended colloquy on cross-examination, Thinh provided more detail:

“[Q]: Now, before directing Christi [a VietEagle employee] to send this email, isn’t it
true that you had a conversation with Thanh regarding the payment? [¶] [A]: Well, yes.
I had talked to Mr. Thanh, who asked for my help, and so I had this letter written up. If I
did not have a promise from Mr. Thanh, I would not have the funds to provide to
Mr. Dang. [¶] [Q]: Now, in your deposition, you testified — [¶] [Court]: Hang on.
Hang on. Explain what you mean by that, that if you did not have a promise from

Mr. Thanh, you would not have the funds to provide to Mr. Dang. [¶] [A]: Because he
asked for my help. If he didn’t — if he didn’t, then I would not have the money for
Mr. Dang. Instead, I would have to pay him, which is Thanh, money for his product. [¶]

[Court]: Okay. So that’s what I wanted to make sure I understand — understood that.
So you made a deal with Mr. Thanh where Mr. Thanh would provide you product for
free, and then that would give you money to pay to Mr. Dang? [¶] [A]: This is how it

usually is. Mr. Thanh provides me with the product, I sell it, I send that money back to



                                             9
him. That’s Mr. Thanh. Here, Mr. Thanh said, you [sic: I] will provide me [sic: you]
the product. I will make the sale and then use the money from that product to pay what
he want[s] me to pay Mr. Dang, before I send the difference back to Vietnam. [¶]
Because the responsibility to pay for the product coming from Vietnam is mine. It’s my
responsibility to pay for that. [¶] [Court]: I understand that. [¶] [Q]: Now, is it true

that in that conversation, Thanh asked you to withhold the sum $116,000 to pay Dang,
and that sum includes a hundred thousand dollars in principal and $16,000 for two years
of interest? You testified to that at your deposition; is that correct? [¶] [A]: Correct.”

(Spelling out of names for reporter’s benefit omitted from foregoing quotation.)
              In another colloquy, Thinh similarly explained an e-mail he sent to Dang’s
wife, Mai: “[Q]: Now, directing your attention to this e-mail . . . , you say . . . ‘and that’s

the reason that I had to stop the money between Thanh and your husband.’ [¶] [A]: Yes.
[¶] [Q]: Could you explain what you meant by that, that you had to stop the money
between Thanh and Mai’s husband? [¶] [A]: What I mean is that — I said ‘stop.’ I
mean I am not going to perform on my promise. [¶] [Q]: Your promise to Mr. Thanh to
help him transfer money? [¶] [A]: Correct.”
              The foregoing evidence amply supports the existence of a third beneficiary

contract. “[A] third party beneficiary contract must either satisfy an obligation of the
promissee to pay money to the beneficiary, or the circumstances indicate the promissee
intends to give the beneficiary the benefit of the promised performance.” (Medical Staff

of Doctors Medical Center in Modesto v. Kamil (2005) 132 Cal.App.4th 679, 685-686,
citing 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts § 655, pp. 594-595.)
Here, the record shows both of these ways of forming a third party beneficiary contract

occurred here. Specifically, Thanh’s contract with Thinh would satisfy his obligation to



                                              10
pay money to Dang and, to accomplish this purpose, Thanh intended Dang to benefit
from Thanh’s and Thinh’s mutual promises to supply and sell seafood, respectively.
              Thinh argues Thanh’s promise to supply seafood did not constitute
consideration or a “new benefit” for Thinh because he “was already operating on credit”
from Thanh. Thinh argues no evidence showed Thanh would not send him seafood

unless Thinh “agreed to help transfer money to Dang . . . .” But Thinh mistakes the
nature of consideration. It does not require an exchange of such premium value that one
party would not have entered the contract “but for” a particular promise. Rather, “all the

law requires for sufficient consideration for a contract is the proverbial ‘peppercorn.’”
(San Diego City Firefighters, Local 145 v. Board of Administration etc. (2012)
206 Cal.App.4th 594, 619.) Thinh conceded he received seafood of substantial value

from Thanh, and Thanh reasonably could view Thinh’s promise to pay the proceeds to
Dang as a valuable convenience, instead of having to sell inventory himself or otherwise
liquidate substantial funds and make other arrangements from Vietnam to pay Dang.
Ample evidence thus supports mutual consideration in the underlying contract.
               Thinh argued at trial and reiterates on appeal his position that he and
Thanh rescinded their agreement that Thinh would pay Dang on Thanh’s behalf. He

points to the exhibits he introduced showing bank wire transfers he made in December
2009 to Thanh and Thanh’s company, Kein Long, totaling $116,000. “A contract, made
expressly for the benefit of a third person, may be enforced by him at any time before the

parties thereto rescind it.” (Civ. Code, § 1559; Martinez v. Socoma Companies, Inc.
(1974) 11 Cal.3d 394, 400.) But even if Thinh intended to rescind any contractual benefit
for Dang by paying Thanh instead of Dang for the seafood he received, “rescission may

not be allowed if a third party beneficiary has acted in reliance on the promises made for



                                             11
his benefit.” (Principal Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman (1998)
65 Cal.App.4th 1469, 1487, fn. 9; accord, Spinks v. Equity Residential Briarwood
Apartments (2009) 171 Cal.App.4th 1004, 1024-1025; see, e.g., Silveyra v. Harper
(1947) 82 Cal.App.2d 761, 766-767 [“no estoppel exists because respondent in no way
changed his position to his damage in reliance on that part of the promise”].)

              The existence of detrimental reliance is a question of fact. (Garamendi v.
Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 723.) Here, the trial court reasonably
could find Dang relied to his detriment on Thinh and Thanh’s agreement to pay him the

funds he was owed. Dang first had an inkling of the agreement in a 2008 e-mail from
Thinh, and he learned more when he traveled to Vietnam in February 2009, where he met
with Thanh about the overdue funds, and demanded repayment. Thanh confirmed his

agreement with Thinh for Thinh to pay Dang the overdue funds, and Thanh even
suggested Dang would be repaid at 20 percent instead of 8 percent interest. Nothing
suggests Dang could not have initiated legal proceedings against Thanh while in Vietnam
in February 2009 to recover his money, without the obstacles of international service of
process or the possibility of lack of personal jurisdiction over Thanh if Dang commenced
a lawsuit in the United States, given Dang had made the loan to Thanh on an earlier trip

to Vietnam. Dang returned to the United States without filing suit in Vietnam or
otherwise pursuing payment from Thanh, and the record supports the conclusion he
turned his recovery efforts instead to Thinh once Thanh confirmed the agreement.

              Back in the United States, however, Dang made little headway with Thinh.
But Thinh did not rebuff Dang outright or suggest he should seek his funds from Thanh.
Instead, Thinh acknowledged that his agreement with Thanh provided he would pay

Dang, and the trier of fact could find Thinh strung Dang along with meetings and



                                            12
discussions suggesting he would pay. As Dang’s personal finances deteriorated, resulting
in foreclosure in 2010 on the house securing the home equity line of credit with which
Dang had loaned Thanh $100,000, Dang pleaded several times with Thinh to pay at least
a portion of the funds due. Thinh scheduled more meetings with Dang, but never paid.
              Thinh points to his late October 2009 e-mail “notif[ying] Dang that he had

rescinded any agreement (assuming an enforceable agreement existed)” as evidence Dang
should have looked to Thanh, not Thinh, for repayment. But the trier of fact was not
required to ignore the substantial period through most of 2009 in which both Thanh and

Thinh induced Dang to look for payment from Thinh instead of pursuing Thanh, while
Dang’s financial predicament deepened. No evidence suggests Thanh made his
arrangement with Thinh in bad faith, or that he did not intend to make Dang whole on his

loan, that he would have repudiated his obligation to Dang if Thinh refused to follow
through on the agreement, or that he would not have paid Dang some or all of what he
owed in February 2009 if not for his agreement with Thinh.
              To the contrary, the evidence suggests Thanh, like Dang, relied on the
agreement and believed Dang should look to Thinh for payment. The evidence showed
Dang pleaded with Thinh for at least a $10,000 advance payment, and the trier of fact

therefore could infer this amount would have made at least a temporary difference in
Dang’s predicament, whether or not Thinh knew of Dang’s financial troubles. In any
event, a reasonable trier of fact could conclude Dang relied to his detriment on the Thinh-

Thanh agreement because he relinquished the opportunity to recoup personally funds
from Thanh while Dang visited him in Vietnam in February 2009, and because he lost
still more time in the succeeding months to pursue full or partial payment from Thanh

before foreclosure on his own obligation became imminent. Substantial evidence



                                            13
therefore supports the judgment on third party beneficiary grounds and, consequently, we
need not address suretyship or promissory estoppel as independent grounds for the
judgment.

C.     Prejudice
              Alternatively, Thinh contends the trial court abused its discretion in
permitting Dang to amend his complaint because the late date of the amendment severely
prejudiced his ability to defend against the new claim. “An abuse of discretion occurs
when, after calm and careful reflection upon the entire matter, it can fairly be said that no
judge would reasonably make the same order under the same circumstances.” (In re
Marriage of Sinks (1988) 204 Cal.App.3d 586, 591, italics added.)
              Thinh emphasizes the element of surprise in Dang’s abrupt switch from a

tort theory of conversion to contract theories for recovery. But a review of both the basis
for Dang’s conversion claim and the version of the complaint (FAC) at the time trial
commenced, before Dang’s amendment, reveals that Thinh did not suffer prejudice
because the conversion theory and the third party beneficiary theory were sufficiently
similar. In fact, Dang’s right as a third party beneficiary to the proceeds of Thinh’s sale
of Thanh’s seafood was the same right Dang asserted Thinh interfered with when he

converted those funds to do with them as he chose, instead of paying Dang.
              “Conversion is the wrongful exercise of dominion over the property of
another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages. Conversion is a strict liability tort.”
(Berlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066, italics and boldface added.)




                                             14
              Here, Thinh acknowledged in his deposition that he agreed to pay Dang the
proceeds of his sale of Thanh’s seafood, and the FAC on which trial commenced asserted
those proceeds belonged to Dang. In particular, the FAC alleged: “32. Some time
between June 2007 and February 2009, nonparty Thanh paid approximately $120,000 to
Defendant Thinh, individually or as an agent or representative of Defendants VietEagle

and/or VietEagle Seafoods, as repayment of the original $100,000 Loan made by . . .
Dang to Non-Party Thanh together with interest. [Plaintiff] Dang is the legal and rightful
owner of the Loan repayment proceeds. [¶] 33. Defendant Thinh, individually or as an

agent or representative of Defendants VietEagle and/or VietEagle Seafoods, intentionally
took possession of the Loan repayment proceeds by Non-Party Thanh, without
Respondent Dang’s consent. Defendant Thinh, individually or as an agent or

representative of Defendants VietEagle and/or VietEagle Seafoods, has refused and
continues to refuse to return the Loan repayment proceeds to . . . Dang and has kept the
funds for his own use.” (Italics added.)
              If there was any doubt that the basis of Dang’s asserted “legal and rightful
owner[ship]” of the proceeds was the Thinh-Thanh contract, Dang’s trial brief filed on
the first day of trial spelled out the third party beneficiary basis for Dang’s claim. The

brief specified: “There are several reasons for Defendants’ liability to Plaintiff for the
$100,000 loan repayment and interest paid thereon. The first is discussed here.
Defendants and Thanh entered into a contract whereby Plaintiff was the third-party

beneficiary. Under their agreement, Thanh was to repay the loan via Defendants by
shipping seafood products from Kein Long [Thanh’s company] to Defendants.
Defendants were then to deduct the loan repayment from the total balance it would owe

to Kein Long [for seafood orders], and repay that sum directly to Plaintiff.” Based on the



                                             15
foregoing, we cannot say the trial court abused its discretion in finding Thinh suffered no
prejudice from the subsequent amendment, since Thinh freely acknowledged before trial
the existence of his third party beneficiary agreement with Thanh in Dang’s favor and the
agreement was a frequent, undisputed topic throughout the trial.
              Thinh contends the belated amendment prejudiced him because, had he

known of it earlier, he would have sought “[t]estimony or evidence from Thanh regarding
his understanding of the deal between him and Thinh in regards to repayment of Dang’s
loan,” and he would have produced other evidence about the nature of their agreement.

He does not, however, suggest what that evidence was or might have shown. Moreover,
he at all times before and during trial admitted the substance of the agreement called for
him to pay the proceeds of the seafood sales to Dang, so it is far from clear what Thanh

might have added of relevance, given Thinh’s admission. Similarly, Thinh suggests he
would have produced more detailed evidence about the proceeds of his sale of Thanh’s
seafood. But given Thinh’s admission he made at least enough to repay $116,000 to
Thanh for the seafood instead of paying Dang, there appears little relevance in further
detail about the seafood transactions. He suggests he would have offered proof of
Thanh’s breach of the third party beneficiary contract, but he made no offer of proof

explaining how Thanh breached the contract, which he admitted at trial Thanh fulfilled
by sending him enough seafood to generate the $116,000 Thinh repaid to Thanh. Thinh
argues he would have produced evidence this repayment constituted rescission of the

third party beneficiary contract on terms he and Thanh mutually agreed upon. But as
discussed, the parties may not rescind such a contract once the third party has relied on it
to his detriment. We presume the judgment is correct absent an affirmative showing by




                                             16
the appellant (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), and having failed to
demonstrate prejudice, Thinh’s challenge fails.
                                           III
                                     DISPOSITION
             The judgment is affirmed. Respondent is entitled to his costs on appeal.




                                                  ARONSON, J.

WE CONCUR:



O’LEARY, P.J.



BEDSWORTH, J.




                                           17
