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Law Offices of
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CRAIG J. BasseTT
25 W, First Stee
Morgan Hill, CA
95037-4559
(408) 779-0007
Craig J. Bassett (SB# 106825)
Attorney at Law
25 W. First Street ELECTRONICALLY
Morgan Hill, CA 95037-4559 FILED
TEL (408) 779-0007 EMAIL cbassett@garlic.com Superior Court of California,
County of San Francisco
; 07/23/2018
Yauheni V Halavanau (SB# 267280) 07 /: OF 42 Court
Law Offices of Gene Halavanau BY: VANESSA WU
55 Francisco Street, Suite 403 Deputy Clerk
San Francisco, CA 94133-2115
TEL (415) 692-5301 EMAIL gene@halavanau.com
Attorneys for Defendant
JAY CHANDRAKANT SHAH
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
Civil Division, 400 McAllister Street, San Francisco, California 94102-4514
(Unlimited Jurisdiction Civil Case)
Lead Case No. CGC-10-503332
COMMONWEALTH LAND TITLE
(Consolidated with CGC-11-512102)
INSURANCE COMPANY;
Plaintiff OBJECTIONS BY DEFENDANT JAY C.
a : SHAH TO PROPOSED STATEMENT OF
: DECISION [Code Civ. Proc., § 634; Cal.
FEDEX OFFICE AND PRINT Rules of Court, rule 3.1590(g)]; REQUEST
SERVICES, INC.; WINSTON LUM; ee
KAUSHAL NIROULA; JAY Wt
CHANDRAKANT SHAH; ELVIA Trial: og aus 2017 and
PALOMINO; MORAD AFRAIMI; ons
Dept.: 303
Judge: Hon. Newton J. Lam
Place: Civil Division, 400 McAllister Street
San Francisco, California 94102-4514
Clerk: 415-551-3726
MELVIN LEE EMERICH; MARTINI &
CHNOOGLE; GRACHELLE
LANGUBAN; and MERCHANT’S
BONDING COMPANY;
Defendants.
AND RELATED CONSOLIDATED
ACTION of Hwang v. FedEx Office and
Print Services, Ine. (CGC-11-512102)
Defendant JAY SHAH (Shah) objects to the proposed statement of decision filed on Jul 06
2018 and requests that the court set a hearing on these objections under the applicable rules.
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I. Procedural Background.
On Jun 29 2011 plaintiff SHIRLEY S. HWANG (Hwang) filed her civil complaint (Case No.
CGC-11-512102) against defendant JAY CHANDRAKANT SHAH (Shah) and other named parties
alleging various causes of action sounding in tort. On Oct 27 2011 co-defendant Winston Lum’s
motion to consolidate that action for all purposes with a similar case (Case No. CGC-10-503332)
previously filed by Commonwealth Land Title Insurance Company as plaintiff against similar
defendants was granted by the Court. A written order granting another co-defendant FedEx Office
and Print Services, Inc.’s motion to consolidate was entered on Nov 01 2011. The Commonwealth
case was designated as the lead case. On Nov 07 2011 defendant Shah filed an answer (general
denial) to the complaint of Hwang. Among the affirmative defenses alleged by Shah was an
affirmative defense of set off. [Answer, 4:21-22.]
Trial of this action was delayed by the Court under multiple requests of various parties
pending judgment and final decision on appeal of a criminal case brought by the people against Shah
and other defendants (Superior Court Case Nos. 214617 and 214619; and Appellate Court, First
District, Division Two, Case No. A138475). In the criminal matter, trial by jury began in March
2012 and continued until verdict on Sep 19 2012. Shah was convicted of conspiracy to commit
money laundering, identity theft, grand theft, money laundering, burglary, and filing false deeds and
deeds of trust. The gist of Shah’s defenses at trial was that he was an unwitting participant in a
fraudulent scheme orchestrated by one Kaushal Niroula and others.
Judgment and sentence were pronounced on Mar 19 2013. Shah was sentenced to a total
prison term of 20 years and ordered to pay a fine of $14.1 million. Shah timely appealed. The
appellate decision was filed on Jul 08 2016, as modified without hearing on Aug 02 2016. On
appeal, this judgment was affirmed, albeit, as to Shah, with some sentence reduction.
In the meantime, the Superior Court retained jurisdiction to determine victim restitution.
Following these convictions and sentencing, under Penal Code section 1202.4 governing direct
victim restitution, the criminal court proceeded to hold a series of hearings to determine how much
to compensate Hwang in damages as a victim of the crimes committed by Shah, The People sought
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on behalf of Hwang the total sum of $4,352,463.70 (as modified), consisting of the following
categories of economic damages: (1) attorney fees and costs of suit incurred to quiet title to three
high rise condominiums, (2) carrying costs (e.g., real property taxes, HOA dues, title insurance
premiums) during the time title to the units was clouded, (3) lost income during her alleged inability
to obtain gainful employment as a supervisor in the mortgage banking industry, (4) loss of real
property value and lost profits from alleged inability to sell the lower units, and finally (5) lost real
property value for alleged forced sale of Hawaii real property and depletion of savings.
Hearings on Hwang’s victim restitution were held on various dates in 2015 (Feb 26, Mar 24,
May 12, and May 13). The People were represented by the district attorney’s office; however,
Hwang was an integral part of these proceedings. Both Hwang and her civil attorney were present
at each and every hearing. Her civil attorney sat at the counsel table with the assistant DA and
argued in open court on occasion during the proceedings. Hwang submitted documentation to the
assistant DA and met with him frequently in order to prove the amount of damages she allegedly
suffered. Hwang hired experts and paid for their testimony and opinions given during the restitution
proceeding. Hwang submitted briefs in the matter. As stated by the court in its restitution order:
“The victim has the initial burden of proof to establish a prima facie case of entitlement and amount,
and only if that burden has been met does the burden shift to the defendant to challenge the item
and/or the amount claimed for restitution. People v. Fulton (2003) 109 Cal.App.4th 876, 886. The
standard of proof is preponderance of the evidence. People v. Gemelli (2008) 161 Cal.App.4th 1539,
1542-1543.” [Restitution Order (Trial Ex. 509 herein) 2:16-21 (italics added).]
On Aug 20 2015 the Court entered its order awarding victim restitution to Hwang and against
Shah in the sum of $311,767.05 plus interest. The Court awarded total principal of: (1) $135,990.41
in legal fees and costs of suit incurred to quiet title; (2) $63,655.98 in homeowner’s association fees;
(3) $104,269.37 in property taxes; (4) $6,855.00 for title insurance premiums paid by Hwang; (5)
$0.00 for lost income; (6) $0.00 for lost property value and lost profits; (7) $0.00 for forced sale due
to unemployment and depletion of savings; and (8) $996.29 for a security alarm system. In addition,
the Court specifically found by a preponderance of the evidence that the value of each of Units 4802
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and 4902 (owned by Hwang) in January 2009 was $1,225,000.
Before the restitution proceedings, on Feb 07 2014 plaintiff Hwang, with leave of Court, filed
her third amended complaint (TAC) in the present consolidated matter. Three (3) causes of action
of that operative pleading are directed against Shah: (1) the fourth (4") cause of action entitled
“Conversion”; (2) the fifth (5) cause of action for “Trespass”; and, (3) the sixth (6"") cause of action
for “Slander of Title”. Hwang sought damages in her civil action identical to the economic damages
claimed by her in the victim restitution proceedings. In addition, she also sought non-economic
emotional distress damages and punitive damages, neither of which were available to her under
criminal restitution.
The trial of this matter first referenced above concerns only the claims of plaintiff Hwang
against defendant Shah. All other claims between other parties in this consolidated action are either
defaulted, settled, or stayed. This civil matter between Hwang and Shah came on for trial on the
dates (in August 2017), in the department, before the judge, and at the place of this Court first shown
above in the caption.
At the beginning of trial herein, by motion in /imine, Shah asked the court to apply the
principle of collateral estoppel to the findings of fact re economic damages claimed by Hwang which
findings were made in the restitution proceedings. This was not a request to apply collateral estoppel
to the criminal conviction proceedings, nor to the matters discussed in the unpublished opinion filed
Jul 08 2016. It was a request to apply collateral estoppel to the restitution proceedings which were
in the nature of a civil action with Hwang as an integral party. Shah never appealed the restitution
order. The Court reserved ruling on that motion. Before trial began, neither party requested by
motion in limine a bifurcation of the trial into a liability phase and a punitive damages second phase
under the authority of Code of Civil Procedure section 3295, subdivision (d).
Before trial, plaintiff Hwang did not, under Code of Civil Procedure section 1987,
subdivisions (b) and (c), serve a notice to appear on defendant Shah coupled with a demand to
produce documents regarding his financial condition. Plaintiff also did not propound pre-trial
discovery concerning defendant’s financial condition and was thus unprepared at the time of trial to
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present documentary evidence of Shah’s present financial condition. Notwithstanding, the Court
acceded to Hwang’s outrageous request for an order commanding Shah to gather and produce in pre-
trial discovery fashion documents regarding his financial condition etc. before a continued date of
trial on Nov 08 2017 set by the Court. The Court purported that there was sufficient clear and
convincing evidence, primarily relying on the collateral estoppel effect applied to Shah’s criminal
convictions, to establish Hwang’s entitlement to recover punitive damages from Shah. So the Court
continued the trial to the continued trial date shown above for the purpose of allowing plaintiff to
examine defendant on the issue of his financial condition, after receipt of documentation going to
that issue to be produced to Hwang in advance of that hearing date, as if pre-trial discovery were still
open.
On the last day of the first part of trial the court invited each side to give its “closing
argument” orally in open court. The parties complied. During his closing argument, Shah expressly
took exception to the confusing and unusual procedural posture of the case of effective bifurcation
mid-trial to accommodate plaintiff's failure to be prepared to prove her punitive damages claim to
her satisfaction. The Court also indicated that it wanted from each of the parties a simultaneous
“proposed statement of decision” by Oct 31 2017.
On Mar 13 2018 the Court issued its tentative decision in this matter. The Court made no
mention therein of the amounts of damages is proposed to award against Shah. It did say in part:
“The court intends to award nominal, emotional distress and punitive damages for trespass”.
[Tentative, 13:19.] The court clerk did not serve this tentative decision on either Craig J. B assett
or Yauheni V Halavanau, the attorneys for Shah with separate addresses. On Apr 17 2018 an
additional proof of service was filed by the clerk showing service by mail of the tentative on Mr.
Halavanau, but the address shown for Mr. Bassett was incorrect and he never received it in the mail.
On May 04 2018 Shah filed a request to revise the tentative. On Jul 06 2018 the Court filed
and served its proposed statement of decision. These timely objections by Shah followed. Under
the circumstances Shah also respectfully requests a hearing to deal with the many issues raised and
the set off required to be made by the court.
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IL. Applicable Law and Rules.
Code of Civil Procedure section 632 requires the court to explain in a statement of decision
the factual and legal basis for its decision as to each of the principal controverted issues at trial.
[Code Civ. Proc., § 632.] Section 634 of the same code reads:
When a statement of decision does not resolve a controverted issue, or if the
statement is ambiguous and the record shows that the omission or ambiguity was
brought to the attention of the trial court either prior to entry of judgment or in
conjunction with a motion under Section 657 or 663, it shall not be inferred on
appeal or upon a motion under Section 657 or 663 that the trial court decided in favor
of the prevailing party as to those facts or on that issue. [Code Civ. Proc., § 634.]
One of the main purposes of the within objections is to bring to the court’s attention that the
statement of decision does not resolve several crucial principal controverted material facts and is
ambiguous in its resolution of other central controverted facts. If and when Shah appeals, then the
court of appeal will not infer that these factual issues were decided in favor of Hwang.
The proposed statement misstates procedural matters or omits discussing them entirely to the
prejudice of Shah. Another purpose of these objections is to point out that the court’s statement of
decision is against the law. The statement of decision also fundamentally side-steps critical factual
issues.
California Rules of Court, rule 3.1590(f) reads in relevant part: “If a party requests a
statement of decision under (d), the court must, within 30 days of announcement or service of the
tentative decision, prepare and serve a proposed statement of decision and a proposed judgment on
all parties that appeared at the trial, unless the court has ordered a party to prepare the statement. ...”
[Cal. Rules of Court, rule 3.1590(f) (italics added).]
Rule 3.1590(g) reads: “Any party may, within 15 days after the proposed statement of
decision and judgment have been served, serve and file objections to the proposed statement of
decision or judgment.” [Cal. Rules of Court, rule 3.1590(g).]
Rule 3.1590(k) reads: “The court may order a hearing on proposals or objections to a
proposed statement of decision or the proposed judgment.
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Morgan Hill, CA
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IH. Objections to Court’s Proposed Statement of Decision.
Shah renews and incorporates the objections asserted in his Proposal to Revise Tentative
Statement of Decision, filed on May 5, 2018, by reference in these objections.
Further, defendant Shah objects to the proposed statement of decision as succinctly as
reasonable possible as follows and requests that a hearing be set by the court and held to address
these issues with a fair opportunity for a verbal interchange between the court and the parties and
to allow presentation of evidence arising since the conclusion of trial last November 2017.
+ No Proposed Judgment. Shah notes that there is no proposed judgment in this matter.
To effectively address all issues arising from the proposed statement of decision, such a proposed
judgment should also be prepared and served. Only then can the proposed statement of decision be
brought into proper focus. Shah notes that the rule of court set forth above requires such a proposed
judgment at this stage of the proceedings. This is another reason for the court to set a hearing in this
matter, as requested.
* Settlement Deduction. The court should reference CACI No. 3926 re settlement deduction
and the authorities cited therein. The proposed statement says nothing about deduction for
settlements made with other defendants. That significant issue must be resolved now and should
therefore be included in the statement. There was no jury trial here. When, if ever, will the court
address this issue, if not now? Not only did Hwang receive a substantial sum of money from co-
defendant FEDEX OFFICE AND PRINT SERVICES, INC. (FedEx), she also recently received a
substantial sum from co-defendant MELVIN LEE EMERICH (Emerich). A hearing is crucial
because Shah needs the opportunity to present the evidence of this additional receipt of money from
another co-defendant. Shah understands that the amount paid to Hwang on behalf of Emerich was
$100,000.00 collected by her in around March 2018 (of this year after trial concluded). Shah is
prepared to obtain a declaration or subpoena witnesses to appear at the hearing to establish this fact.
The burden of proof on allocation of settlement funds previously received by Hwang is on Hwang.
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How else can she sustain this burden but by a subsequent hearing? A hearing on the present
objections is therefore definitely needed and crucial to a fair resolution of a// issues before the court.
The usual procedure is for the court to apply the offset and reduce the verdict before the entry
of judgment. [Knox v. Countv of Los Angeles (1980) 109 Cal.App.3d 825, 834-835.] The
non-settling defendant is entitled to a credit for the full amount of the settlement, regardless of the
non-settling defendant’s percentage or proportion of comparative fault or responsibility for the
plaintiff's damages. [McComber v. Wells (1999) 72 Cal.App.4th 512, 516.] The court intends to
award damages against Shah for the slander of title and tresspass causes of action, both of which
were asserted against all defendants, including the settling defendants— FedEx and Emerich. Shah
is thus entitled to a credit for the full amount of Hwang’s settlement. The reason for the offset rule
is to prevent a double recovery to the plaintiff for the same injury. Thus, whatever consideration is
received in settlement from one of several tortfeasors or co-obligors reduces the damages recoverable
against the others. [Code Civ. Proc., § 877, subd. (a); Jaramillo v. State of California (1978) 81
Cal.App.3d 968.]
Plaintiff Hwang may argue that the amount of the Code of Civil Procedure section 877 offset
should be lower than the total amount of the settlement due to the comparative fault of the
non-settling defendant. This is also specifically prohibited under that section. [See, e.g., Erreca’s
vy. Superior Court (1993) 19 Cal. App.4th 1475, 1487-1488, 1502; American Motorcycle Association
vy. Superior Court (1978) 20 Cal.3d. 578, 604.] “Moreover, to preserve the incentive to settle which
section 877 provides to injured plaintiffs, we conclude that a plaintiff's recovery from non-settling
tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a
good faith settlement, rather than by an amount measured by the settling tortfeasor’s proportionate
responsibility for the injury.” [American Motorcycle Association, supra, at p. 604.] The appellate
court in Erreca’s v. Superior Court, supra, summed up the policy of the law under section 877: “In
making a determination of such a credit due from another’s settlement, the trial court is not required
or allowed to make a comparative fault finding that the settling defendants were faultless in the
matter, which would prevent any credit from being awarded to the remaining defendants ... [T]he
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amount the plaintiff recovers in a good faith settlement should be used to calculate the credit, rather
than ‘an amount measured by the settling tortfeasor’s proportionate responsibility for the injury.’ ”
[Erreca’s v. Superior Court, supra, at p. 1502 (citations omitted).] Thus, this Court should offset
the award by the full amount of Plaintiff's settlement with other defendants.
« Procedural Matters. The court’s dates of trial does not match Shah’s recollection. Trial
began on Aug 07 2017 with the parties and attorneys present to handle pre-trial matters. The first
witness was sworn the next day Aug 08 2017 and went that entire week and then again on Monday
Aug 14 2017. The undersigned has no recollection of an Aug 15 2017 day of trial.
+« Severance or Continued Trial Date. The court does not even mention the Nov 08 2017
continued trial date in its proposed statement. Nor does it purport that there was a severance or
bifurcation and a second separate phase of trial on the issue of punitive damages. This is very
confusing and prejudicial to Shah who objected to any continuance and objected to bifurcation after
plaintiff Hwang had essentially rested.
+ Prejudgment Interest on “Vendibility” Damages. The court already knows how Shah
feels about the outrageous finding that Hwang suffered “vendibility” damages based on the
outlandish and patently unreasonable opinions of the overpaid “expert” (hired gun) Tish. Hwang
asks for prejudgment interest on the amount determined by the court to be the difference between
the (alleged) fair market value of the two lower condos compared to the amount received by Hwang
when she actually sold them, which the court has called “vendibility” financial loss. (Right! the
value went up by tens of thousands of dollars a month for the 6 months right after the mid-2008 real
estate market crash! And then it went steadily down from there until the time Hwang actually sold
her units! Hwang produced not one genuine offer to buy either unit during that period. Sorry, but
no reasonable person would believe this and the court has been duped into thinking it makes sense.)
The secondary question is whether Hwang can recover prejudgment interest on these
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damages. Civil Code section 3287 was originally enacted in 1872. When Civil Code section 3287
was “adopted in 1872, the key distinguishing factor was not ... whether the cause of action arose in
tort or contract, but rather whether the damages were readily ascertainable.” [Levy-Zentner Co. v.
Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 795.] As one court stated: “Damages
are deemed certain or capable of being made certain within the provisions of subdivision (a) of [Civil
Code] section 3287 where there is essentially no dispute between the parties concerning the basis
of computation of damages if any are recoverable but where their dispute centers on the issue of
liability giving rise to damage.” [Esgro Central, Inc. v. General Ins. Co. (1971) 20 Cal.App.3d 1054,
1060.]
It is anything but certain here what the amount of damages Hwang purportedly suffered for
vendibility of her condos. The court will recall that there is a specific finding of fact in both the
restitution proceedings and the criminal proceedings that the value of each of Units 4802 and 4902
(owned by Hwang) in January 2009 was $1,225,000. Yet the court here magically finds that the
value was not this prelitigated and fixed by court-finding sum, but instead $1,675,000— a bloated
and inflated increase by a factor of 37% of the real value already determined by a court. How on
earth could the bloated value used by this court ever be considered “undisputed” by Shah? That is
impossible! The basis of the higher valuation is not “established market values” else this same court
could not have arrived at the substantially lower valuation in the prior proceedings. Assuming that
the court leaves in the vendibility damages, it can only assess them without prejudgment interest.
* Collateral Estoppel Confusion. The court is greatly confused about what Shah requested
before and during the course of trial. In its proposed statement the Court says: “Defendant argued
that Plaintiff should also be subject to the findings of the criminal court in People v. Shaw (Not
Officially Published, 2016 WL 3766427). Specifically, Defendant, the named defendant in People
vy. Shaw, argued that the Plaintiff, the victim in People v. Shaw, be estopped from introducing
evidence of damages in this subsequent civil proceeding.” [Proposed Statement, 2:12-17.] This
statement is false. Shah never asked this court to apply collateral estoppel from the criminal
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proceedings— only those findings of fact arising from the restitution proceedings. Not only does
the court fail to correctly apply collateral estoppel as it must under the circumstances, to those
findings, it corrupts the request of Shah into something incomprehensible. It also corrupts and
distorts what Shah argued to this court— that if the court was not going to apply collateral estoppel,
then Shah had the right to defend against the claims of Hwang for damages, such as the cost of
attorneys to remove the cloud on title. Again, the court shut Shah down from asking one single
question of Hwang going to this issue. So the court did grant collateral estoppel against Shah and
in favor of Hwang on the amount and nature of those damages, while denying collateral estoppel
against Hwang. That inconsistency is irreconcilable. The court cannot have it both ways. The court
is very confused about this collateral estoppel issue and needs to get it straight and rethink it. The
bottom line is that, among others, there is absolutely no “vendibility” damages suffered by Hwang
because that exact issue between these exact same parties has already been fully and finally decided
and collaterally estops Hwang from re-litigating that fact.
+ No Basis for Assessing Punitive Damages. If Shah, arguendo accepts all that this court
says in the proposed statement about what was manifestly an unlawful “set up” re ordering
production of documents and continuing the trial date mid-trial, it still does not wash that the court
has found that Shah has a positive net worth. Undisputedly, he has a personal judgment against him
owned by Hwang of over $400,000 at this point, post-judgment interest considered. Plus, he has a
personal obligation of $14.1 million dollars for the fine imposed on him. Yes, the court read that
right: $14, 100,000.00. Per this court: “Mr. Shaw’s [sic] criminal scheme netted approximately $2.2
million dollars, his ranch property in San Jose, the reason for his scheme was once valued at $1.6
million.” [Proposed Statement, 26:24-26.] The court is wrong about the amount Shah received. He
received significantly less than 2.2 million dollars. His ranch’s value years ago does not mean it is
worth that much today. Even so, it is impossible here to find that Shah has a positive net worth. He
has a negative net worth, no matter how you look at it. The court is moreover guessing about a
positive net worth and “shooting in the dark” about this issue.
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+ No Emotional Distress Damages for Trespass. Shah already provided unassailable
references which state that Hwang cannot recover emotional distress damages for the tort of
trespass. Yet this court has assessed no less than a half a million dollars ($500,000) for that very
thing. That is against the law. That item must therefore be eliminated.
Shah repeats the following argument previously made herein:
“Once a cause of action for trespass or nuisance is established, an occupant
of land may recover damages for annoyance and discomfort that would naturally
ensue therefrom.” [Kornoffv. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 272.]
“We do not question that a nonresident property owner may suffer mental or
emotional distress from damage to his or her property. But annoyance and discomfort
damages are distinct from general damages for mental and emotional distress.
Annoyance and discomfort damages are intended to compensate a plaintiff for the
loss of his or her peaceful occupation and enjoyment of the property. ... ‘We
recognize that annoyance and discomfort by their very nature include a mental or
emotional component, and that some dictionary definitions of these terms include the
concept of distress. Nevertheless, the “annoyance and discomfort” for which damages
may be recovered on nuisance and trespass claims generally refers to distress arising
out of physical discomfort, irritation, or inconvenience caused by odors, pests, noise,
and the like. Our cases have permitted recovery for annoyance and discomfort
damages on nuisance and trespass claims while at the same time precluding recovery
for “pure” emotional distress.’ ” [Kelly v. CB&I Constructors, Inc. (2009) 179
Cal.App.4th 442, 456 (internal citations omitted).]
* Double Recovery. It is fully appropriate in the statement of decision to resolve the
controverted issue of double recovery. It should say something about how Hwang cannot recover
both on the civil restitution judgment and the current case judgment for the same thing, prejudgment
interest included. That essential matter is entirely missing from the proposed statement. Which
items of damage are duplicative? Which are new? The statement should say.
When a crime victim obtains a civil judgment against the offender based on the same facts
that led to a criminal restitution order, any payments made on the civil judgment must be credited
against the restitution order, except to the extent that it includes post-judgment interest, pre-judgment
interest accruing between the date of the restitution order and the judgment, and costs. [Vigilant Ins.
Co. v. Chiu (2009) 175 Cal.App.4th 438, 442.]
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« Amount of Various Awards of Damage. The proposed statement is very confusing on
what amount, if any, is awarded to Hwang for prejudgment interest. These components must be
broken out to decipher how the interest was calculated. Given the duplicative recovery of the
restitution order this is crucial to have stated explicitly. How did the court calculate the amount of
“Financial Loss Vendibility” damages? The statement does not say. It should not remain a mystery.
It should straightforwardly explain how that sum was arrived at.
In particular, the “Legal Expenses to Remove Doubt” in the sum of $231,910 is completely
incomprehensible. How did the court arrive at this sum? The court applied collateral estoppel
against Shah to find that the principal amount of damages was $135,990.41 in legal fees and costs
of suit incurred to quiet title. Where does the higher sum come from? What part is prejudgment
interest? These are factual issues which should not be left to speculation, but should be expressly
set forth in a clear and plain manner.
Respectfully submitted,
Dated: July 23, 2018
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Objections by Defendant Jay C, Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018Law Offices of
CRAIG J. BASSETT
25 W. First Street,
‘Morgan Hill, CA
95037-4559
(408) 779-9007
ATTORNEY FOR PARTY MAKING SERVICE (Name, state bar number, and address):
Craig J. Bassett, Attorney at Law, SB# 106825
25 W, First Street, Morgan Hill, CA 95037-4559
TEL (408) 779-0007 FAX (408) 778-6005
EMAIL cbassett@garlic.com
ATTORNEY FOR (Name) Def. JAY CHANDRAKANT SHAH
NAME AND ADDRESS OF COURT:
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Civic Center Courthouse, 400 McAllister Street
San Francisco, CA 94102-4514
(Unlimited Jurisdiction Civil Case)
FOR COURT USE ONLY:
TITLE OF CASE (ABBREVIATED):
Hwang vy, FedEx Office and Print Services, Inc.
CASE NUMBER:
CGC-10-503332; CGC-11-512102
PROOF OF SERVICE BY REGULAR MAIL
STATE OF CALIFORNIA } ss.
COUNTY OF SANTA CLARA )
Tam a citizen of the United States and a resident of the county aforesaid; J am over the age of
eighteen years and not a party to the within entitled action; my business address is shown above.
On the date set out below I served a copy of the document described below on the attorneys
or parties of record in said action, by placing a true copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid deposited directly in the United States mail at Morgan Hill, California
addressed as follows:
DOCUMENT(S):
* OBJECTIONS BY DEFENDANT JAY C. SHAH TO PROPOSED STATEMENT OF
DECISION [Code Civ. Proc., § 634; Cal. Rules of Court, rule 3.1590(g)|; REQUEST FOR
HEARING
ATTORNEYS FOR PLAINITFF HWANG:
Clement L. Glynn, Morgan K. Lopez
Glynn & Finley, LLP
One Walnut Creek Center
100 Pringle Avenue, Suite 500
Walnut Creek, CA 94596-7328
I declare under penalty of perjury under the laws of the State o: € valifornia that the foregoing
is true and correct. Lf
Dated: July 23, 2018 GS 7
Craig JBassett, Mailing Declarant
CCP §§ 1013, 1013a PROOF OF SERVICE BY REGULAR MAIL July 23, 2018
Preview
Law Offices of Owe 33 34 CRAIG J. BasseTT 25 W, First Stee Morgan Hill, CA 95037-4559 (408) 779-0007 Craig J. Bassett (SB# 106825) Attorney at Law 25 W. First Street ELECTRONICALLY Morgan Hill, CA 95037-4559 FILED TEL (408) 779-0007 EMAIL cbassett@garlic.com Superior Court of California, County of San Francisco ; 07/23/2018 Yauheni V Halavanau (SB# 267280) 07 /: OF 42 Court Law Offices of Gene Halavanau BY: VANESSA WU 55 Francisco Street, Suite 403 Deputy Clerk San Francisco, CA 94133-2115 TEL (415) 692-5301 EMAIL gene@halavanau.com Attorneys for Defendant JAY CHANDRAKANT SHAH SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO Civil Division, 400 McAllister Street, San Francisco, California 94102-4514 (Unlimited Jurisdiction Civil Case) Lead Case No. CGC-10-503332 COMMONWEALTH LAND TITLE (Consolidated with CGC-11-512102) INSURANCE COMPANY; Plaintiff OBJECTIONS BY DEFENDANT JAY C. a : SHAH TO PROPOSED STATEMENT OF : DECISION [Code Civ. Proc., § 634; Cal. FEDEX OFFICE AND PRINT Rules of Court, rule 3.1590(g)]; REQUEST SERVICES, INC.; WINSTON LUM; ee KAUSHAL NIROULA; JAY Wt CHANDRAKANT SHAH; ELVIA Trial: og aus 2017 and PALOMINO; MORAD AFRAIMI; ons Dept.: 303 Judge: Hon. Newton J. Lam Place: Civil Division, 400 McAllister Street San Francisco, California 94102-4514 Clerk: 415-551-3726 MELVIN LEE EMERICH; MARTINI & CHNOOGLE; GRACHELLE LANGUBAN; and MERCHANT’S BONDING COMPANY; Defendants. AND RELATED CONSOLIDATED ACTION of Hwang v. FedEx Office and Print Services, Ine. (CGC-11-512102) Defendant JAY SHAH (Shah) objects to the proposed statement of decision filed on Jul 06 2018 and requests that the court set a hearing on these objections under the applicable rules. -1- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we 26 Law Offices of 27 CRAIG J. BasseTT 25 W, First Street I. Procedural Background. On Jun 29 2011 plaintiff SHIRLEY S. HWANG (Hwang) filed her civil complaint (Case No. CGC-11-512102) against defendant JAY CHANDRAKANT SHAH (Shah) and other named parties alleging various causes of action sounding in tort. On Oct 27 2011 co-defendant Winston Lum’s motion to consolidate that action for all purposes with a similar case (Case No. CGC-10-503332) previously filed by Commonwealth Land Title Insurance Company as plaintiff against similar defendants was granted by the Court. A written order granting another co-defendant FedEx Office and Print Services, Inc.’s motion to consolidate was entered on Nov 01 2011. The Commonwealth case was designated as the lead case. On Nov 07 2011 defendant Shah filed an answer (general denial) to the complaint of Hwang. Among the affirmative defenses alleged by Shah was an affirmative defense of set off. [Answer, 4:21-22.] Trial of this action was delayed by the Court under multiple requests of various parties pending judgment and final decision on appeal of a criminal case brought by the people against Shah and other defendants (Superior Court Case Nos. 214617 and 214619; and Appellate Court, First District, Division Two, Case No. A138475). In the criminal matter, trial by jury began in March 2012 and continued until verdict on Sep 19 2012. Shah was convicted of conspiracy to commit money laundering, identity theft, grand theft, money laundering, burglary, and filing false deeds and deeds of trust. The gist of Shah’s defenses at trial was that he was an unwitting participant in a fraudulent scheme orchestrated by one Kaushal Niroula and others. Judgment and sentence were pronounced on Mar 19 2013. Shah was sentenced to a total prison term of 20 years and ordered to pay a fine of $14.1 million. Shah timely appealed. The appellate decision was filed on Jul 08 2016, as modified without hearing on Aug 02 2016. On appeal, this judgment was affirmed, albeit, as to Shah, with some sentence reduction. In the meantime, the Superior Court retained jurisdiction to determine victim restitution. Following these convictions and sentencing, under Penal Code section 1202.4 governing direct victim restitution, the criminal court proceeded to hold a series of hearings to determine how much to compensate Hwang in damages as a victim of the crimes committed by Shah, The People sought 5 Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we 26 Law Offices of 27 CRAIG J. BasseTT 25 W, First Street on behalf of Hwang the total sum of $4,352,463.70 (as modified), consisting of the following categories of economic damages: (1) attorney fees and costs of suit incurred to quiet title to three high rise condominiums, (2) carrying costs (e.g., real property taxes, HOA dues, title insurance premiums) during the time title to the units was clouded, (3) lost income during her alleged inability to obtain gainful employment as a supervisor in the mortgage banking industry, (4) loss of real property value and lost profits from alleged inability to sell the lower units, and finally (5) lost real property value for alleged forced sale of Hawaii real property and depletion of savings. Hearings on Hwang’s victim restitution were held on various dates in 2015 (Feb 26, Mar 24, May 12, and May 13). The People were represented by the district attorney’s office; however, Hwang was an integral part of these proceedings. Both Hwang and her civil attorney were present at each and every hearing. Her civil attorney sat at the counsel table with the assistant DA and argued in open court on occasion during the proceedings. Hwang submitted documentation to the assistant DA and met with him frequently in order to prove the amount of damages she allegedly suffered. Hwang hired experts and paid for their testimony and opinions given during the restitution proceeding. Hwang submitted briefs in the matter. As stated by the court in its restitution order: “The victim has the initial burden of proof to establish a prima facie case of entitlement and amount, and only if that burden has been met does the burden shift to the defendant to challenge the item and/or the amount claimed for restitution. People v. Fulton (2003) 109 Cal.App.4th 876, 886. The standard of proof is preponderance of the evidence. People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.” [Restitution Order (Trial Ex. 509 herein) 2:16-21 (italics added).] On Aug 20 2015 the Court entered its order awarding victim restitution to Hwang and against Shah in the sum of $311,767.05 plus interest. The Court awarded total principal of: (1) $135,990.41 in legal fees and costs of suit incurred to quiet title; (2) $63,655.98 in homeowner’s association fees; (3) $104,269.37 in property taxes; (4) $6,855.00 for title insurance premiums paid by Hwang; (5) $0.00 for lost income; (6) $0.00 for lost property value and lost profits; (7) $0.00 for forced sale due to unemployment and depletion of savings; and (8) $996.29 for a security alarm system. In addition, the Court specifically found by a preponderance of the evidence that the value of each of Units 4802 -3- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018Law Offices of wv we 26 27 CRAIG J. BasseTT 25 W, First Stee Morgan Hill, CA 39 and 4902 (owned by Hwang) in January 2009 was $1,225,000. Before the restitution proceedings, on Feb 07 2014 plaintiff Hwang, with leave of Court, filed her third amended complaint (TAC) in the present consolidated matter. Three (3) causes of action of that operative pleading are directed against Shah: (1) the fourth (4") cause of action entitled “Conversion”; (2) the fifth (5) cause of action for “Trespass”; and, (3) the sixth (6"") cause of action for “Slander of Title”. Hwang sought damages in her civil action identical to the economic damages claimed by her in the victim restitution proceedings. In addition, she also sought non-economic emotional distress damages and punitive damages, neither of which were available to her under criminal restitution. The trial of this matter first referenced above concerns only the claims of plaintiff Hwang against defendant Shah. All other claims between other parties in this consolidated action are either defaulted, settled, or stayed. This civil matter between Hwang and Shah came on for trial on the dates (in August 2017), in the department, before the judge, and at the place of this Court first shown above in the caption. At the beginning of trial herein, by motion in /imine, Shah asked the court to apply the principle of collateral estoppel to the findings of fact re economic damages claimed by Hwang which findings were made in the restitution proceedings. This was not a request to apply collateral estoppel to the criminal conviction proceedings, nor to the matters discussed in the unpublished opinion filed Jul 08 2016. It was a request to apply collateral estoppel to the restitution proceedings which were in the nature of a civil action with Hwang as an integral party. Shah never appealed the restitution order. The Court reserved ruling on that motion. Before trial began, neither party requested by motion in limine a bifurcation of the trial into a liability phase and a punitive damages second phase under the authority of Code of Civil Procedure section 3295, subdivision (d). Before trial, plaintiff Hwang did not, under Code of Civil Procedure section 1987, subdivisions (b) and (c), serve a notice to appear on defendant Shah coupled with a demand to produce documents regarding his financial condition. Plaintiff also did not propound pre-trial discovery concerning defendant’s financial condition and was thus unprepared at the time of trial to -4- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we 26 Law Offices of 27 CRAIG J. BasseTT inst Street M present documentary evidence of Shah’s present financial condition. Notwithstanding, the Court acceded to Hwang’s outrageous request for an order commanding Shah to gather and produce in pre- trial discovery fashion documents regarding his financial condition etc. before a continued date of trial on Nov 08 2017 set by the Court. The Court purported that there was sufficient clear and convincing evidence, primarily relying on the collateral estoppel effect applied to Shah’s criminal convictions, to establish Hwang’s entitlement to recover punitive damages from Shah. So the Court continued the trial to the continued trial date shown above for the purpose of allowing plaintiff to examine defendant on the issue of his financial condition, after receipt of documentation going to that issue to be produced to Hwang in advance of that hearing date, as if pre-trial discovery were still open. On the last day of the first part of trial the court invited each side to give its “closing argument” orally in open court. The parties complied. During his closing argument, Shah expressly took exception to the confusing and unusual procedural posture of the case of effective bifurcation mid-trial to accommodate plaintiff's failure to be prepared to prove her punitive damages claim to her satisfaction. The Court also indicated that it wanted from each of the parties a simultaneous “proposed statement of decision” by Oct 31 2017. On Mar 13 2018 the Court issued its tentative decision in this matter. The Court made no mention therein of the amounts of damages is proposed to award against Shah. It did say in part: “The court intends to award nominal, emotional distress and punitive damages for trespass”. [Tentative, 13:19.] The court clerk did not serve this tentative decision on either Craig J. B assett or Yauheni V Halavanau, the attorneys for Shah with separate addresses. On Apr 17 2018 an additional proof of service was filed by the clerk showing service by mail of the tentative on Mr. Halavanau, but the address shown for Mr. Bassett was incorrect and he never received it in the mail. On May 04 2018 Shah filed a request to revise the tentative. On Jul 06 2018 the Court filed and served its proposed statement of decision. These timely objections by Shah followed. Under the circumstances Shah also respectfully requests a hearing to deal with the many issues raised and the set off required to be made by the court. -5- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we Law Offices of CRAIG J. BasseTT inst Street M IL. Applicable Law and Rules. Code of Civil Procedure section 632 requires the court to explain in a statement of decision the factual and legal basis for its decision as to each of the principal controverted issues at trial. [Code Civ. Proc., § 632.] Section 634 of the same code reads: When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue. [Code Civ. Proc., § 634.] One of the main purposes of the within objections is to bring to the court’s attention that the statement of decision does not resolve several crucial principal controverted material facts and is ambiguous in its resolution of other central controverted facts. If and when Shah appeals, then the court of appeal will not infer that these factual issues were decided in favor of Hwang. The proposed statement misstates procedural matters or omits discussing them entirely to the prejudice of Shah. Another purpose of these objections is to point out that the court’s statement of decision is against the law. The statement of decision also fundamentally side-steps critical factual issues. California Rules of Court, rule 3.1590(f) reads in relevant part: “If a party requests a statement of decision under (d), the court must, within 30 days of announcement or service of the tentative decision, prepare and serve a proposed statement of decision and a proposed judgment on all parties that appeared at the trial, unless the court has ordered a party to prepare the statement. ...” [Cal. Rules of Court, rule 3.1590(f) (italics added).] Rule 3.1590(g) reads: “Any party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment.” [Cal. Rules of Court, rule 3.1590(g).] Rule 3.1590(k) reads: “The court may order a hearing on proposals or objections to a proposed statement of decision or the proposed judgment. -6- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we Law Offices of 25 CRAIG J. Bassett 25 W, First Street Morgan Hill, CA 39 IH. Objections to Court’s Proposed Statement of Decision. Shah renews and incorporates the objections asserted in his Proposal to Revise Tentative Statement of Decision, filed on May 5, 2018, by reference in these objections. Further, defendant Shah objects to the proposed statement of decision as succinctly as reasonable possible as follows and requests that a hearing be set by the court and held to address these issues with a fair opportunity for a verbal interchange between the court and the parties and to allow presentation of evidence arising since the conclusion of trial last November 2017. + No Proposed Judgment. Shah notes that there is no proposed judgment in this matter. To effectively address all issues arising from the proposed statement of decision, such a proposed judgment should also be prepared and served. Only then can the proposed statement of decision be brought into proper focus. Shah notes that the rule of court set forth above requires such a proposed judgment at this stage of the proceedings. This is another reason for the court to set a hearing in this matter, as requested. * Settlement Deduction. The court should reference CACI No. 3926 re settlement deduction and the authorities cited therein. The proposed statement says nothing about deduction for settlements made with other defendants. That significant issue must be resolved now and should therefore be included in the statement. There was no jury trial here. When, if ever, will the court address this issue, if not now? Not only did Hwang receive a substantial sum of money from co- defendant FEDEX OFFICE AND PRINT SERVICES, INC. (FedEx), she also recently received a substantial sum from co-defendant MELVIN LEE EMERICH (Emerich). A hearing is crucial because Shah needs the opportunity to present the evidence of this additional receipt of money from another co-defendant. Shah understands that the amount paid to Hwang on behalf of Emerich was $100,000.00 collected by her in around March 2018 (of this year after trial concluded). Shah is prepared to obtain a declaration or subpoena witnesses to appear at the hearing to establish this fact. The burden of proof on allocation of settlement funds previously received by Hwang is on Hwang. -7- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we 26 Law Offices of 27 CRAIG J. BasseTT 25 W, First Street How else can she sustain this burden but by a subsequent hearing? A hearing on the present objections is therefore definitely needed and crucial to a fair resolution of a// issues before the court. The usual procedure is for the court to apply the offset and reduce the verdict before the entry of judgment. [Knox v. Countv of Los Angeles (1980) 109 Cal.App.3d 825, 834-835.] The non-settling defendant is entitled to a credit for the full amount of the settlement, regardless of the non-settling defendant’s percentage or proportion of comparative fault or responsibility for the plaintiff's damages. [McComber v. Wells (1999) 72 Cal.App.4th 512, 516.] The court intends to award damages against Shah for the slander of title and tresspass causes of action, both of which were asserted against all defendants, including the settling defendants— FedEx and Emerich. Shah is thus entitled to a credit for the full amount of Hwang’s settlement. The reason for the offset rule is to prevent a double recovery to the plaintiff for the same injury. Thus, whatever consideration is received in settlement from one of several tortfeasors or co-obligors reduces the damages recoverable against the others. [Code Civ. Proc., § 877, subd. (a); Jaramillo v. State of California (1978) 81 Cal.App.3d 968.] Plaintiff Hwang may argue that the amount of the Code of Civil Procedure section 877 offset should be lower than the total amount of the settlement due to the comparative fault of the non-settling defendant. This is also specifically prohibited under that section. [See, e.g., Erreca’s vy. Superior Court (1993) 19 Cal. App.4th 1475, 1487-1488, 1502; American Motorcycle Association vy. Superior Court (1978) 20 Cal.3d. 578, 604.] “Moreover, to preserve the incentive to settle which section 877 provides to injured plaintiffs, we conclude that a plaintiff's recovery from non-settling tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor’s proportionate responsibility for the injury.” [American Motorcycle Association, supra, at p. 604.] The appellate court in Erreca’s v. Superior Court, supra, summed up the policy of the law under section 877: “In making a determination of such a credit due from another’s settlement, the trial court is not required or allowed to make a comparative fault finding that the settling defendants were faultless in the matter, which would prevent any credit from being awarded to the remaining defendants ... [T]he -8- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we Law Offices of 24 CRAIG J. BasseTT 25 W, First Street Morgan Hill, CA 39 amount the plaintiff recovers in a good faith settlement should be used to calculate the credit, rather than ‘an amount measured by the settling tortfeasor’s proportionate responsibility for the injury.’ ” [Erreca’s v. Superior Court, supra, at p. 1502 (citations omitted).] Thus, this Court should offset the award by the full amount of Plaintiff's settlement with other defendants. « Procedural Matters. The court’s dates of trial does not match Shah’s recollection. Trial began on Aug 07 2017 with the parties and attorneys present to handle pre-trial matters. The first witness was sworn the next day Aug 08 2017 and went that entire week and then again on Monday Aug 14 2017. The undersigned has no recollection of an Aug 15 2017 day of trial. +« Severance or Continued Trial Date. The court does not even mention the Nov 08 2017 continued trial date in its proposed statement. Nor does it purport that there was a severance or bifurcation and a second separate phase of trial on the issue of punitive damages. This is very confusing and prejudicial to Shah who objected to any continuance and objected to bifurcation after plaintiff Hwang had essentially rested. + Prejudgment Interest on “Vendibility” Damages. The court already knows how Shah feels about the outrageous finding that Hwang suffered “vendibility” damages based on the outlandish and patently unreasonable opinions of the overpaid “expert” (hired gun) Tish. Hwang asks for prejudgment interest on the amount determined by the court to be the difference between the (alleged) fair market value of the two lower condos compared to the amount received by Hwang when she actually sold them, which the court has called “vendibility” financial loss. (Right! the value went up by tens of thousands of dollars a month for the 6 months right after the mid-2008 real estate market crash! And then it went steadily down from there until the time Hwang actually sold her units! Hwang produced not one genuine offer to buy either unit during that period. Sorry, but no reasonable person would believe this and the court has been duped into thinking it makes sense.) The secondary question is whether Hwang can recover prejudgment interest on these -9- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we Law Offices of 26 CRAIG J. BasseTT 25 W, First Street damages. Civil Code section 3287 was originally enacted in 1872. When Civil Code section 3287 was “adopted in 1872, the key distinguishing factor was not ... whether the cause of action arose in tort or contract, but rather whether the damages were readily ascertainable.” [Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 795.] As one court stated: “Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of [Civil Code] section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.” [Esgro Central, Inc. v. General Ins. Co. (1971) 20 Cal.App.3d 1054, 1060.] It is anything but certain here what the amount of damages Hwang purportedly suffered for vendibility of her condos. The court will recall that there is a specific finding of fact in both the restitution proceedings and the criminal proceedings that the value of each of Units 4802 and 4902 (owned by Hwang) in January 2009 was $1,225,000. Yet the court here magically finds that the value was not this prelitigated and fixed by court-finding sum, but instead $1,675,000— a bloated and inflated increase by a factor of 37% of the real value already determined by a court. How on earth could the bloated value used by this court ever be considered “undisputed” by Shah? That is impossible! The basis of the higher valuation is not “established market values” else this same court could not have arrived at the substantially lower valuation in the prior proceedings. Assuming that the court leaves in the vendibility damages, it can only assess them without prejudgment interest. * Collateral Estoppel Confusion. The court is greatly confused about what Shah requested before and during the course of trial. In its proposed statement the Court says: “Defendant argued that Plaintiff should also be subject to the findings of the criminal court in People v. Shaw (Not Officially Published, 2016 WL 3766427). Specifically, Defendant, the named defendant in People vy. Shaw, argued that the Plaintiff, the victim in People v. Shaw, be estopped from introducing evidence of damages in this subsequent civil proceeding.” [Proposed Statement, 2:12-17.] This statement is false. Shah never asked this court to apply collateral estoppel from the criminal -10- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018wv we Law Offices of 26 CRAIG J. BasseTT inst Street M proceedings— only those findings of fact arising from the restitution proceedings. Not only does the court fail to correctly apply collateral estoppel as it must under the circumstances, to those findings, it corrupts the request of Shah into something incomprehensible. It also corrupts and distorts what Shah argued to this court— that if the court was not going to apply collateral estoppel, then Shah had the right to defend against the claims of Hwang for damages, such as the cost of attorneys to remove the cloud on title. Again, the court shut Shah down from asking one single question of Hwang going to this issue. So the court did grant collateral estoppel against Shah and in favor of Hwang on the amount and nature of those damages, while denying collateral estoppel against Hwang. That inconsistency is irreconcilable. The court cannot have it both ways. The court is very confused about this collateral estoppel issue and needs to get it straight and rethink it. The bottom line is that, among others, there is absolutely no “vendibility” damages suffered by Hwang because that exact issue between these exact same parties has already been fully and finally decided and collaterally estops Hwang from re-litigating that fact. + No Basis for Assessing Punitive Damages. If Shah, arguendo accepts all that this court says in the proposed statement about what was manifestly an unlawful “set up” re ordering production of documents and continuing the trial date mid-trial, it still does not wash that the court has found that Shah has a positive net worth. Undisputedly, he has a personal judgment against him owned by Hwang of over $400,000 at this point, post-judgment interest considered. Plus, he has a personal obligation of $14.1 million dollars for the fine imposed on him. Yes, the court read that right: $14, 100,000.00. Per this court: “Mr. Shaw’s [sic] criminal scheme netted approximately $2.2 million dollars, his ranch property in San Jose, the reason for his scheme was once valued at $1.6 million.” [Proposed Statement, 26:24-26.] The court is wrong about the amount Shah received. He received significantly less than 2.2 million dollars. His ranch’s value years ago does not mean it is worth that much today. Even so, it is impossible here to find that Shah has a positive net worth. He has a negative net worth, no matter how you look at it. The court is moreover guessing about a positive net worth and “shooting in the dark” about this issue. -ll- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018we Law Offices of CRAIG J. BasseTT inst Street M + No Emotional Distress Damages for Trespass. Shah already provided unassailable references which state that Hwang cannot recover emotional distress damages for the tort of trespass. Yet this court has assessed no less than a half a million dollars ($500,000) for that very thing. That is against the law. That item must therefore be eliminated. Shah repeats the following argument previously made herein: “Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom.” [Kornoffv. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 272.] “We do not question that a nonresident property owner may suffer mental or emotional distress from damage to his or her property. But annoyance and discomfort damages are distinct from general damages for mental and emotional distress. Annoyance and discomfort damages are intended to compensate a plaintiff for the loss of his or her peaceful occupation and enjoyment of the property. ... ‘We recognize that annoyance and discomfort by their very nature include a mental or emotional component, and that some dictionary definitions of these terms include the concept of distress. Nevertheless, the “annoyance and discomfort” for which damages may be recovered on nuisance and trespass claims generally refers to distress arising out of physical discomfort, irritation, or inconvenience caused by odors, pests, noise, and the like. Our cases have permitted recovery for annoyance and discomfort damages on nuisance and trespass claims while at the same time precluding recovery for “pure” emotional distress.’ ” [Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456 (internal citations omitted).] * Double Recovery. It is fully appropriate in the statement of decision to resolve the controverted issue of double recovery. It should say something about how Hwang cannot recover both on the civil restitution judgment and the current case judgment for the same thing, prejudgment interest included. That essential matter is entirely missing from the proposed statement. Which items of damage are duplicative? Which are new? The statement should say. When a crime victim obtains a civil judgment against the offender based on the same facts that led to a criminal restitution order, any payments made on the civil judgment must be credited against the restitution order, except to the extent that it includes post-judgment interest, pre-judgment interest accruing between the date of the restitution order and the judgment, and costs. [Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 442.] -12- Objections by Defendant Jay C. Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018Law Offices of CRAIG. BASSETT 25 W, First Street Morgan Hill, CA 95037-4539 (408) 779-0007 we « Amount of Various Awards of Damage. The proposed statement is very confusing on what amount, if any, is awarded to Hwang for prejudgment interest. These components must be broken out to decipher how the interest was calculated. Given the duplicative recovery of the restitution order this is crucial to have stated explicitly. How did the court calculate the amount of “Financial Loss Vendibility” damages? The statement does not say. It should not remain a mystery. It should straightforwardly explain how that sum was arrived at. In particular, the “Legal Expenses to Remove Doubt” in the sum of $231,910 is completely incomprehensible. How did the court arrive at this sum? The court applied collateral estoppel against Shah to find that the principal amount of damages was $135,990.41 in legal fees and costs of suit incurred to quiet title. Where does the higher sum come from? What part is prejudgment interest? These are factual issues which should not be left to speculation, but should be expressly set forth in a clear and plain manner. Respectfully submitted, Dated: July 23, 2018 -13- Objections by Defendant Jay C, Shah to Proposed Statement of Decision; Request for Hearing July 23, 2018Law Offices of CRAIG J. BASSETT 25 W. First Street, ‘Morgan Hill, CA 95037-4559 (408) 779-9007 ATTORNEY FOR PARTY MAKING SERVICE (Name, state bar number, and address): Craig J. Bassett, Attorney at Law, SB# 106825 25 W, First Street, Morgan Hill, CA 95037-4559 TEL (408) 779-0007 FAX (408) 778-6005 EMAIL cbassett@garlic.com ATTORNEY FOR (Name) Def. JAY CHANDRAKANT SHAH NAME AND ADDRESS OF COURT: SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Civic Center Courthouse, 400 McAllister Street San Francisco, CA 94102-4514 (Unlimited Jurisdiction Civil Case) FOR COURT USE ONLY: TITLE OF CASE (ABBREVIATED): Hwang vy, FedEx Office and Print Services, Inc. CASE NUMBER: CGC-10-503332; CGC-11-512102 PROOF OF SERVICE BY REGULAR MAIL STATE OF CALIFORNIA } ss. COUNTY OF SANTA CLARA ) Tam a citizen of the United States and a resident of the county aforesaid; J am over the age of eighteen years and not a party to the within entitled action; my business address is shown above. On the date set out below I served a copy of the document described below on the attorneys or parties of record in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid deposited directly in the United States mail at Morgan Hill, California addressed as follows: DOCUMENT(S): * OBJECTIONS BY DEFENDANT JAY C. SHAH TO PROPOSED STATEMENT OF DECISION [Code Civ. Proc., § 634; Cal. Rules of Court, rule 3.1590(g)|; REQUEST FOR HEARING ATTORNEYS FOR PLAINITFF HWANG: Clement L. Glynn, Morgan K. Lopez Glynn & Finley, LLP One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596-7328 I declare under penalty of perjury under the laws of the State o: € valifornia that the foregoing is true and correct. Lf Dated: July 23, 2018 GS 7 Craig JBassett, Mailing Declarant CCP §§ 1013, 1013a PROOF OF SERVICE BY REGULAR MAIL July 23, 2018