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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Aug-08-2014 1:18 pm

Case Number: CGC-10-503332
Filing Date: Aug-08-2014 1:17

Filed by: BOWMAN LIU
Juke Box: 001 Image: 04580035
GENERIC CIVIL FILING (NO FEE)

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

001004580035

Instructions:
Please place this sheet on top of the document to be scanned.| e

Superior Court of Galifornia
County of San Francisco

THOMAS TRAPANI (SBN 100387)

1 || SCOTT D. LONG (SBN203505) CLE
LARRY COOK (PRO HAC VICE)
2 || Fidelity National Law Group BY:
A Division of Fidelity National Title Group, Inc.
3 || 1550 Parkside Drive, Suite 300
Walnut Creek, CA 94596
4 || Telephone: (925) 280-3362
5 Facsimile: (925) 930-9588
Attorneys for Commonwealth Land Title
6 || Insurance Company
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
COMMONWEALTH LAND TITLE CASE NO. CGC-10-503332
11 || INSURANCE COMPANY, (Consolidated for all purposes with CGC-
11-512102)
12 Plaintiff,
PLAINTIFF COMMONWEALTH LAND
13 vs. TITLE INSURANCE COMPANY’S

CONDITIONAL NON-OPPOSITION TO
14 || FEDEX OFFICE AND PRINT SERVICES, DEFENDANT DAVID REPLOGLE’S

INC.; WINSTON LUM; KAUSHAL DEMURRER TO SECOND AMENDED
15 || NIROULA; JAY CHANDRAKANT COMPLAINT

SHAH; ELVIA PALOMINO; MORAD
16 || AFRAIMI; MELVIN LEE EMERICH; Date: August 21, 2014

: MARTINI & CHNOOGLE; GRACHELLE Time: 9:30 a.m.
| 17 || LANGUBAN; MERCHANTS BONDING Dept.: 501
COMPANY, and DOES 1-25.

18
Defendants.
19 Trial Scheduled: TBD
20 I INTRODUCTION
21 Plaintiff Commonwealth Land Title Insurance Company (“Commonwealth”) does not

22 || oppose Defendant David Replogle’s Demurrer to Commonwealth’s Second Amended Complaint
23 ||so long as Commonwealth is granted leave to amend its Second Amended Complaint to allege
24 || facts establishing its delayed discovery of Mr. Replogle’s involvement in the conspiracy and

25 || fraud alleged against him in the first cause of action.
wl 26 Commonwealth does not contest that there is a three-year statute of limitations for

ad
Lt) | | 27 asserting a fraud cause of action, however, it asserts that the statute of limitations does not start

running until “discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”
: 1
fo COMMONWEALTH’S CONDITIONAL NON-OPP. TO REPLOGLE DEMURRERCo OXI A WF WN |

ae
on DAH PF WN OS

(Code if Civil Procedure §338[d].) Here, Commonwealth was not aware of facts underlying its
fraud cause of action against Mr. Replogle until Defendant Winston Lum’s deposition
testimony on October 30, 2013 established evidence of Mr. Replogle’s involvement in the
scheme to defraud Plaintiff Shirley Hwang through the fabrication of fraudulent grant deeds.
Unfortunately, Commonwealth did not assert those facts in its Second Amended Complaint —
which first named Mr. Replogle as a defendant.

Commonwealth respectfully asks that if this Court is inclined to sustain Mr. Replogle’s
Demurrer, it should do so with leave to Commonwealth to amend its Second Amended
Complaint in order to allege facts showing its 2013 discovery of facts showing that Mr. Replogle]
was involved in the subject conspiracy and fraud.

Ul. | RELEVANT FACTS. _

This case arises out of a highly publicized criminal conspiracy in which plaintiffs
Shirley S. Hwang and Commonwealth were victimized by an audacious scheme to steal title
to three condominiums owned by Ms. Hwang, mortgage the stolen property, and launder the
proceeds. The scheme took place in early 2009, the conspirators were arrested in 2010, and
tried to a criminal jury in 2012. Two of the three defendants who stood trial - Jay Shah and
Winston Lum - were convicted of multiple felony counts. Shah and Lum were sentenced to
20 and 13 years respectively. The third criminal co-defendant, Melvin Emerich, was
acquitted on certain counts and the jury hung on the remainder. The San Francisco District
Attorney’s office reached a plea deal with Emerich but he moved to withdraw the plea deal.
The Superior Court has continued Emerich’s motion for approximately one year. Grachelle

Languban, a criminal defendant, jumped bail and fled to the Philippines. Languban was a

FedEx Office & Print Services employee at the San Francisco Pine Street store at the time
she notarized the forged grant deeds purportedly conveying title to the properties from
Shirley S. Hwang to Winston Lum. Languban was employed by Defendant FedEx Office &

Print Services to perform notarizations.

2
COMMONWEALTH’S CONDITIONAL NON-OPP. TO REPLOGLE DEMURRER,oe YN A HF WN —

=
o

Discovery was slowed significantly due to the stay imposed due to the criminal trials of
Shah, Lum, and Emerich in 2012. (Declaration of Scott D. Long (“Long Decl.”) at { 2.) In fact,
depositions were stayed until after May 1, 2013. (Ibid.)

Due to these delays in discovery, Commonwealth did not learn of facts showing that Mr.
Replogle was involved in the fraudulent scheme until the October 30, 2013, deposition of
Defendant Winston Lum in California state prison. At his deposition, Mr. Lum, among other
things, testified that Mr. Replogle approached him to participate in the scheme to defraud Ms.
Hwang of her property. (Lum Depo. at p. 48:2-22, attached as Exhibit A to Long Decl.)

Based upon Mr. Lum’s testimony and other discovery from late 2013, Commonwealth
obtained leave of Court on January 2, 2014, to file a Second Amended Complaint which added
Mr. Replogle as a defendant and asserted additional causes of action against FedEx. (Long
Decl. at 4.) Commonwealth filed its Second Amended Complaint on January 2, 2014. (Long
Decl. at 5.)

Ill. ARGUMENT

Commonwealth should be granted leave to amend its Second Amended Complaint to
assert facts showing its late discovery of facts showing that Mr. Replogle was involved in the
conspiracy to defraud Ms. Hwang. While there is a three-year statute of limitations for fraud,
that statute does not begin to run until “discovery, by the aggrieved party, of the facts
constituting the fraud or mistake.” (Code of Civ. Proc. §338[d]; see, also, Parsons v. Tickner
(1995) 31 Cal. App. 4th 1513, 1525.) Here, despite its efforts to obtain information through
discovery and other means, while Commonwealth was aware of the fraud by others against Ms.
Hwang earlier, it did not learn of Mr. Replogle’s involvement until the deposition of Mr. Lum
in 2013. That is not surprising due to the secretive nature of the conspiracy which had several
different frauds being perpetrated on multiple victims (including one con that lead to murder) by
many conspirators.

Any sustaining of Mr. Replogle’s Demurrer should allow Commonwealth leave to
amend its Second Amended Complaint. Leave to amend should be granted liberally. (Howard

3
COMMONWEALTH’S CONDITIONAL NON-OPP. TO REPLOGLE DEMURREROo OY DH FF WBN =

YN YN NY NN DN Dee ee ee
ot A A BF oN =F SO eH NHN DH RB WH OD

v. County of San Diego (2010) 184 Cal.App.4" 1422, 1428 [“the policy favoring amendment
is so strong that it is a rare case in which denial of leave to amend can be justified.”].)
Moreover, amendments must be liberally allowed when they are based upon facts developed
in discovery. (Mabie v. Hyatt (1998) 61 Cal.App.4" 581, 596 (emphasis added) [“if
discovery and investigation develop factual grounds justifying a timely amendment to a
pleading, leave to amend must be liberally granted.”).) Here, Commonwealth has
demonstrated that it is able to allege facts which would show that it did not learn of Mr.
Replogle’s involved in the fraud against Ms. Hwang until 2013. Accordingly, leave to amend
should be granted if the demurrer is sustained.

IV. CONCLUSION

In the face of Defendant David Replogle’s Demurrer, Plaintiff Commonwealth should be
allowed to amend its Second Amended Complaint to allege facts showing its 2013 discovery of
Mr. Replogle’s involvement in a fraudulent scheme to divest Shirley Hwang of three condo
properties.

Dated: August 8, 2014 FIDELITY NAT! LAW GROUP

Thomas A. Trapani
Scott D. Long
Larry L. Cook
Attomeys for Plaintiff Commonwealth Land Title
Insurance Company

4
COMMONWEALTH’S CONDITIONAL NON-OPP. TO REPLOGLE DEMURRER,PROOF OF SERVICE

1am employed in the County of Contra Costa, State of California. | am over the age of 18 years and not a|
party to the within action, My business address is 1550 Parkside Drive, Suite 300, Walnut Creek, California
94596. On August 8, 2014, I served the within document PLAINTIFF COMMONWEALTH LAND TITLE
INSURANCE COMPANY’S CONDITIONAL NON-OPPOSITION TO DEFENDANT DAVID
REPLOGLE’S DEMURRER TO THE SECOND AMENDED COMPLAINT on the parties in said action by
placing a true copy thereof as indicated below, addressed as follows:

Attorney for Shirley Hwang Attorneys for Jay Chandrakant Shah and Elvia
Morgan Lopez, Esq. Palomino

Glynn & Finley, LLP Craig J. Bassett, Esq.

One Walnut Creek Center Attorney at Law

100 Pringle Avenue, Suite 500 25 W. First Street

Walnut Creek, CA 94596 Morgan Hill, CA 95037-4559

Fax: (925) 945-1975 Fax: (408) 778-6005

mlopez@GlynnFinley.com cbassett@garlic.com

In Pro Per Defendant Attorney Pro Se

Winston Lum, AP2537 **BY MAIL ONLY Melvin L. Emerich

CCC Legal Mail Dept. 209 Portola Court

P.O. Box 790 Los Altos, CA 94022

Susanville, CA 96127-0790 mlemerich@yahoo.com

Attorneys for Fed-Ex Office and Print Services Co-Counsel for Fed-Ex Office and Print Services
Michael L.. Smith, Esq. Laurie Book, Esq.

Manning & Kass Clinton & Clinton

2 Rincon Center 100 Oceangate Blvd., 14" Fl.

121 Spear St. Suite 200 Long Beach, CA 90802

San Francisco, CA 94105 Fax: (562) 216-5001

Fax: (415) 217-6999 Ibook@clinton-clinton.com

mis@manningllp.com

In Pro Per Defendant

David Replogle, AH3617 **BY MAIL ONLY
CA Substance Abuse Facility

Attn: Litigation Dept.

P.O. Box 7100

Corcoran, CA 93212

® BY MAIL: I caused such envelope(s) with postage thereon fully prepaid to be placed for collection and
mailing at my place of business. Following ordinary business practices, said correspondence will be|
deposited with the United States Postal Service at Walnut Creek, California, on the referenced date in the|
ry course of business. There is delivery service by United States mail at the place so addressed in|
the City of Walnut Creek, County of Contra Costa, State of California.

& BY ELECTRONIC MAIL: | caused such document(s) to be delivered electronically to the email
address(es) on the service list as agreed upon the parties.

I declare under the penalty of perjury under the laws of the State of California, that the foregoing is true
and correct.

Dated: August 8, 2014 Aula soe
MARL!

A NOBLE

Proof of Service