Motion-Secondary: COMMONWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE AND PRINT SERVICES, INC et al (PROVIDE ACCESS)

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
May-17-2017 11:25 am

Case Number: CGC-10-503332
Filing Date: May-17-2017 11:24
Filed by: CAROL BALISTRERI
Image: 05867884
OPPOSITION

COMMONWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE
AND PRINT SERVICES, INC et al (PROVIDE ACCESS)

001C05867884

Instructions:
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Jay Shah
Pro Se
AP3101
P.O. Box 2000 FI 4 D
Vacaville, CA 95696-2000 Coty GL Ot Calton
. Tancisng
MAY 17 2017
R
ay. IK OF THE Court
Deputy Ger
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Commonwealth Land Title insurance Lead Case No. CGC-10-503332
Company,
(consolidated for all purposes with CGC-11-

Plaintiff, 512102)

v.
FedEx Office and Print Services Inc.; OPPOSITION TO COMMONWEALTH’S
Winston Lum; Kaushal Niroula; Jau MOTION FOR JUDGEMENT ON THE
Chandrakant Shah; Elvia Palomino; Morad | PLEADINGS
Afraimi; Meelvin Lee Emerich; Martini
Chhnoogle; Grachelle Languban;
Merchants Bonding Company, and Does 1- Date: May 31, 2017
24, Time: 9:30 am

Dept: 302
Defendants.
INTRODUCTION

Plaintiff, Commonwealth Land Title Insurance Company, attempts to use collateral
estoppel in asking the Court to issue a decision on the dispositive motion without
providing any valid support. The motion should be denied for several reasons. First,
Plaintiff is using an improper vehicle to assert res judicata and the issues asserted cannot
be resolved by a motion for judgment on the pleadings. The motion for judgment on the
pleadings is treated as a demurrer, and Plaintiff cannot argue in good faith that Mr. Shah’s

answer fails to state sufficient facts to constitute a defense. There are issues related toCwm YN DWH BF WN =

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mitigation, a potential award of punitive damages, and contributory negligence by
Commonwealth that had not been addressed during criminal trial. As the motion for
judgment on the pleadings in designed to grant the judgment for the entire complaint or the
entire cause of action in its entirely, the issues of damages cannot be bifurcated as a result
of grating the motion for judgment on the pleadings. To do so would deprive Mr. Shah of
the ability to present important evidence relating to offset of the damages due to the
actions by other parties to the action, particularly Commonwealth.

Second, in addition to the reason above, granting the motion for the conversion
cause of action would result in an outcome that is inconsistent with California law. For
example, Plaintiff goes as far as requesting the Court to grant its motion on the pleadings
for the conversion cause of action against Mr. Shah for conversion of real property based
on the unrelated criminal conviction for identity theft. Yet, it is a well-established
California law that the cause of action for conversion can only apply to personal property
and the result of granting the motion would result in the outcome not supported by

California law. The Court should thus deny Commonweath’s motion in its entirety.

MEMORANDUM OF POINTS AND AUTHORITIES
Legal Standard

Plaintiff is correct that the motion for judgment on the pleadings performs a
function of a general demurrer. It is also correct that Plaintiff may move for judgment on
the pleadings on the ground that the complaint states facts sufficient to constitute a cause
of action against the Defendant and “the answer does not state facts sufficient to constitute
a defense to the complaint. Code Civ. Proc. § 438(c). Where a party seeks to establish
collateral estoppel, res judicata is ordinarily not raised by demurrer. Collins v. City &
County of San Francisco (1952) 112 Cal.App.2d 719, 725.

Collateral estoppel is determined first by evaluating the issue to be collaterally
estopped under a four-part test, and second by determining whether collateral estoppel
would satisfy the public interest. Thus, even if the threshold requirements for collateral

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estoppel are met, the doctrine will not bar relitigation if doing so would be unjust. Lucido
v. Superior Court of Mendocino County (1990) 51 Cal.3d 335, 352, citing Chamblin v.
Municipal Court (1982) 130 Cal-App.3d 115. The criteria for application of collateral
estoppel for the prior criminal convictions are: 1) the prior conviction must have been for a
serious offense so that the defendant was motivated to fully litigate the charges; 2) there
must have been a “full and fair ... trial” to prevent convictions of doubtful validity from
being used; 3) the party asserting collateral estoppel to prove that the issue was fully
presented to the court and finally determined; and 4) the party against whom collateral
estoppel is asserted was a party or in privity with a party at the prior trial. Leader v. State
of California, supra, 182 Cal.App.3d at p. 1087. In respect to Mr. Shah, Plaintiff failed to

meet its burden.

Legal Argument

1. Commonwealth Failed to Use the Proper Vehicle to Assert
Collateral Estoppel and Granting the Motion on Judgment on
the Pleadings Would Cause Grave Injustice.

Determining whether an issue has been actually litigated in the former proceeding
can be difficult where the former judgment or order does not show on its face that the
particular issue was decided. 7 Witkin, CAL. PROCEDURE (4th ed. 1997) Judgment, § 355,
p. 917. Where more than one issue was involved, the burden of proof is on the party
asserting collateral estoppel to show that a particular issue was adjudicated. Id. at p. 918.
Plaintiff failed to meet such burden.

First, as discussed below, both Commonwealth and Hwang attempt to use
conviction for identity theft to move for judgment on the pleadings on the conversion
cause of action. Granting the motion would produce a result inconsistent with California
law. Plaintiff also failed to present evidence of specific findings that would satisfy the
elements of other alleged causes of action.

Second, Plaintiff's argument that Mr. Shah’s answer fails to state sufficient facts to

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constitute a defense fails. There are issues related to mitigation, a potential award of
punitive damages, and contributory negligence that need to be addressed and had not been
addressed during criminal trial. For example, Mr. Shah intends to show that payment of
$2.5 million dollars by Commonwealth to a lending company, as stated should have been
$1.8 million but for egregious mistakes done by the company. The issue had not been
litigated in the criminal proceedings, as Mr. Shah did not have the incentive or reason to
thoroughly cross-examine witnesses on this issue. Mr. Shah will also point out reckless
mistakes done by the title company in authorizing the loan issuance without any due
diligence. Such evidence would have to deal with damages.

Finally, as the motion for judgment on the pleadings in designed to grant the
judgment for the entire complaint or the entire cause of action in its entirely, the issues of
damages cannot be bifurcated as a result of grating the motion. To do so would deprive
Mr. Shah from ability to present evidence relating to mitigation and contributory
negligence by other parties.

Barker y. Hull, 191 Cal.App.3d 221, 227, on which Plaintiff heavily relies is
inapposite. The case involved a defendant and not plaintiff asserting the collateral estoppel.
In addition, the case was decided prior to enactment of section 438 of the Civil Code,
which may had an impact on the case’s outcome.

Plaintiff had an option to file a motion for summary adjudication to address these

issues, but Commonwealth failed to do so and her motion should be denied in its entirety.

2. Plaintiff’s Demurrer As to the Conversion Cause of Action Fails
Because Conversion Cause of Action Does Not Apply to Real

Property.

Plaintiff argues that Mr. Shah’s conviction for identity theft estops him from
controverting Plaintiff's claim for conversion. Both Mrs. Hwang and Commonwealth then
argue that California courts have shown willingness to expand the tort of conversion
beyond its original boundaries. Plaintiffs, however, stay short of stating that the tort of

conversion applies to real property.Cc 3

The California law is clear that conversion is a tort that may be committed only
with relation to personal property and not real property.” Munger v. Moore (1970) 11
Cal.App.3d 1, 7; 5 Witkin, SUMMARY OF CAL. LAW (10th ed. 2005) Torts, § 699, p. 1023;
CACI 2100. Plaintiff's complaint alleges that Defendants took possession of the Properties
by asserting rights of dominion and control without Plaintiff's consent. Commonwealth’s
moving papers state that the theft of real property was accomplished by theft of Ms.
Hwang’s identity and the use of it to obtain funds from Commonwealth’s insured.
(Commonwealth Motion for Judgement on the Pleadings, p. 5, lines 17-19). While it
constitutes a creative argument, it does not stand. A mechanism causing a phenomenon
does turn the mechanism into a phenomenon. Mr. Shah’s Ist affirmative defense states that
the complaint and each cause of action therein fails to state facts sufficient to constitute a
cause of action against this answering defendant.” (Answer (General Denial of Shah, Page
2). Because California law is clear that the tort of conversion cannot be applied to real
property, Plaintiff's demurrer as to the cause of action for conversion must also be
overruled on these grounds.

These issues could have been addressed by a different vehicle. A second action
between the same parties on a different cause of action is not precluded by a former
judgment.... But the first judgment ‘operates as an estoppel or conclusive adjudication as to
such issues in the second action as were actually litigated and determined in the first
action.’ Baker v. Hull, 191 Cal.App.3d 221, 227 (citing 7 Witkin, Cal. Procedure (3d ed.
1985) Judgment, § 253, p. 691, italics in original.). The problem with Plaintiffs’ motion is
that it fails to distinguish the issues that had been actually litigated.

Mr. Shah’s prosecution for identity theft cannot be used offensively to collaterally
estop Mr. Shah from asserting his defenses to the cause of action for conversion. Mr. Shah
was not convicted with grand theft of condos. Plaintiff did not meet its burden in moving

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Conclusion.

Mr. Shah respectfully requests this Court to deny Ms. Hwang’s motion for

judgment on the pleadings.

Date: May 15, 2017

Pro Se

Ja’