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MATA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Nov-30-2011 11:14 am
Case Number: CGC-10-503332
Filing Date: Nov-30-2011 11:12
Juke Box: 001 Image: 03402163
GENERIC CIVIL FILING (NO FEE)
INWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE AND PRINT SERVI
001003402163
Instructions:
Please place this sheet on top of the document to be scanned.w
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GLYNN & FINLEY, LLP
CLEMENT L. GLYNN, Bar No. 57117
MORGAN K. LOPEZ, Bar No. 215513 FILED
One Walnut Creek Center Superior Court o} omia
100 Pringle Avenue, Suite 500 County of 887 Fnsisco
Walnut Creek, CA 94596 NOY 30 201
Telephone: (925) 210-2800
Facsimile: (925) 945-1975 CLERK OF THE COURT
Attorneys for Cross-Defendant/Plaintiff BY ssa
Shirley Hwang
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
Lead Case No. CGC-10-503332
COMMONWEALTH LAND TITLE
INSURANCE COMPANY, (Consolidated for all purposes with
CGC-11-512102)
Plaintiff,
FIRST AMENDED COMPLAINT FOR
NEGLIGENCE, NEGLIGENCE PER
SE, CONVERSION, TRESPASS, AND
SLANDER OF TITLE IN CASE NO,
CGC-11-512102)
vs.
FEDEX OFFICE AND PRINT SERVICES
INC.; WINSTON LUM; KAUSHAL
NIROULA; JAU CHANDRAKANT
SHAH; ELVIA PALOMINO; MORAD
AFRAIMI; MELVIN LEE EMERICH;
MARTINI CHNOOGLE; GRACHELLE
LANGUBAN; MERCHANTS BONDING
COMPANY, and DOES 1-24,
BY FAX
CASE NO. CGC-11-512102
Defendants.
SHIRLEY S. HWANG,
Plaintiff,
vs.
FEDEX OFFICE AND PRINT SERVICES
INC., WINSTON LUM, KAUSHAL
NIROULA, JAY CHANDRAKANT SHAH,
MELVIN LEE EMERICH, GRACHELLE
LANGUBAN, and MARTINI &
CHNOOGLE, and DOES 1-50,
Cross-Defendants.
eee See
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FIRST AMENDED COMPLAINT in Case No. CGC-11-512102oD mM IND HW kh wD wD
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Plaintiff Shirley S. Hwang (“Plaintiff”), for her Complaint against defendants
FEDEX OFFICE AND PRINT SERVICES, INC., WINSTON LUM, KAUSHAL NIROULA,
JAY CHANDRAKANT SHAH, MELVIN LEE EMERICH, GRACHELLE LANGUBAN, and
MARTINI & CHNOOGLE alleges as follows:
1. Plaintiff is an individual and sues in her personal capacity as well as her capacity
as Trustce of the Trust of Shirley S. Hwang dated July 1, 1998, and as Trustee of the 425 First
Street #5501 Trust Dated September 17, 2008. At all times alleged herein she was and is an
individual owning property and residing in San Francisco County, California. She is a legal and
beneficial owner of the property hereinafter referred to.
2. Plaintiff is informed and believes and thereon alleges that Defendant FEDEX
OFFICE AND PRINT SERVICE, INC. (“FEDEX”), is, and at all times mentioned herein was, a
corporation organized and existing under and by virtue of the laws of the State of Texas and
authorized to do business in the State of California.
3. Plaintiff is informed and believes and thereon alleges that defendant WINSTON
LUM is, and at all times herein mentioned was, a resident of San Francisco County, California.
4. Plaintiff is informed and believes and thereon alleges that defendant KAUSHAL
NIROULA is, and at all times herein mentioned was, a resident of San Francisco County,
California.
5. Plaintiff is informed and believes and thereon alleges that defendant JAY
CHANDRAKANT SHAH is, and at all times herein mentioned was, a resident of Santa Clara
County, California.
6. Plaintiff is informed and believes and thereon alleges that defendant MELVIN
LEE EMERICH is, and at all times herein mentioned was, a resident of Santa Cruz County,
California,
7. Plaintiff is informed and believes and thereon alleges that defendant
GRACHELLE LANGUBAN was at all times herein mentioned a resident of San Francisco
County, California. Plaintiff is informed and believes and thereon alleges that LANGUBAN was
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at all relevant times a notary public employed by FEDEX at a retail office in San Francisco,
California.
8. Plaintiff is informed and believes and thereon avers that FEDEX either had
knowledge of LANGUBAN’S unfitness to serve as a notary public, or recklessly failed to inform
itself regarding her lack of trustworthiness, and despite such knowledge, placed her in a position
of trust where she could inflict severe harm on members of the public, including Plaintiff.
9. Plaintiff is informed and believes and thereon avers that FEDEX placed
LANGUBAN in a position where she was able to act on behalf of FEDEX without oversight, and
that she was free to determine on her own, how to carry out her duties as a notary. By granting
LANGUBAN such autonomy, FEDEX effectively deputized her to act on its behalf, and to
thereby bind FEDEX to the consequences of her actions.
10. Plaintiffis informed and believes and thereon alleges that defendant MARTINI &
CHNOOGLE is, and at all times herein mentioned was, a Nevada Corporation established by
EMERICH for the purpose of distributing wrongfully obtained loan proceeds.
ll. The true names and capacities, whether individual, corporate, associate, or
otherwise, of the defendants naméd herein as DOES 1 through 25, inclusive, and each of them
are unknown to Plaintiff, who therefore sues them by such fictitious names (“DOE Defendants”).
Plaintiff is informed and believes and thercon alleges that each of the DOE Defendants is in
some manner responsible for the actions and damages alleged in this Complaint. When Plaintiff
ascertains the true names and capacities of the DOE Defendants, she will amend this Complaint.
12. Plaintiff is informed and believes and thereon alleges that at all times herein
mentioned, defendants, and each of them, were the agents, servants, or employees of each of the
other defendants and that all of the things alleged to have been done by each defendant were done
in that defendant’s capacity as agent of the other defendants, within the scope of the defendant’ s
authority as agent, servant, or employee, and with the permission and consent of the other
defendants.
13, Jurisdiction and venue are proper in this county as the contracts, promissory notes,
grant deeds and deeds of trust at issue were executed in the City and County of San Francisco,
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FIRST AMENDED COMPLAINT in Case No. CGC-11-512102NY A WwW bk w
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the subject properties are located in the City and County of San Francisco, and the wrongful
conduct took place in the City and County of San Francisco.
GENERAL ALLEGATIONS
14, ‘In August and December 2008, Plaintiff purchased three condominiums in One
Rincon Hill, a residential high-rise, commonly known as units 4802, 4902, and 5501, 425 First
Street, San Francisco, California 94105 (the “Properties”).
15. Plaintiff purchased the Properties for investment with the intention of selling them
shortly after purchasing them. ,
16. Onor about January 14, 2009, defendants LUM, NIROULA, SHAH,
LANGUBAN, and EMERICH conspired and agreed among themselves to cause to be recorded
forged grant deeds purporting to transfer title in the Properties from Plaintiff to defendant LUM.
True and correct copies of the purported grant deeds are attached hereto as Exhibits 1, 2 and 3.'
17. Plaintiff had no knowledge of the forgeries, did not consent to the transfer of her
Properties and LUM, NIROULA, SHAH, LANGUBAN, and EMERICH had no authority to
transfer the Properties. Defendant LUM had no legal ownership or any other lawful interest in
Plaintiffs Properties.
18. After the purported transfer of title to LUM, LUM, NIROULA, SHAH,
LANGUBAN, and EMERICH took various steps to secure loans on the Properties.
19, On March 20, 2009, Plaintiff filed two separate lawsuits to quiet title to the
Properties in San Francisco County Superior Court, Case No. CGC-09-486395 and Case No.
CGC-09-486391.
20. On or about July 8 2010, Plaintiff obtained default judgments against LUM in
both actions, quieting title in her name with respect to the Properties.
1 Plaintiffis informed and believes and thereon alleges that on or about February 28, 2009,
in the course and scope of her employment as a notary at a FEDEX retail store, LANGUBAN
performed the notarization of documents relating to the residence located at 188 Minna Street,
Apt. 29A, San Francisco, CA, 94105, of which Plaintiff is also the legal and beneficial owner.
This notarization was done without Plaintiff's knowledge or consent. A true and correct copy of
one of these notarized documents is attached hereto as Exhibit 4.
FIRST AMENDED COMPLAINT in Case No. CGC-11-512102nA fF w
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21. Plaintiff finally regained marketable title to her Properties on or about August
2010.
22. Investigations by the San Francisco Police Department Economic Crimes Unit
revealed that these defendants collectively conspired to forge the grant deeds in an attempt to
wrongfully convey legal title to LUM to obtain money from loan proceeds. The police
investigation, which concluded that Plaintiff was a victim of real estate fraud, resulted in felony
criminal complaints being filed against LUM, NIROULA, SHAH, and EMERICH in the
Superior Court of the State of California City and County of San Francisco Action Numbers
10009191, 1009193, and 10003838, which proceedings are currently pending. The investigation
also resulted in a felony criminal complaint being filed against LANGUBAN in the Superior
Court of the State of California City and County of San Francisco Action Number 10018652.
The complaint charges LANGUBAN with, among other things, violating Penal Code sections
182(a)(1) (conspiracy), 487({a) (grand theft) (2 counts) 115(a) and 115.5(a) (filing false deeds) (3
counts each), 530.5(a) (unauthorized use of personal information), 118(a) (perjury) (3 counts),
470(c) (forgery of evidence) (3 counts) and 470(d) (forgery of a contract) (3 counts). After being
released on bail, LANGABUN fled the country.
23. Asa direct result of defendants’ conduct, the Properties were encumbered and not
marketable until August 2010.
24. As a result, Plaintiff has sustained extensive financial losses, including lost sales
opportunities, lost rental income, loss of income, fees paid to recover title to the property,
emotional distress and other losses that will be shown.
First Cause of Action (Negligence)
(Against LANGUBAN and FEDEX and DOES 1-10)
25. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs
1 through 24.
26, Defendant LANGUBAN held herself out as a California Notary Public with
commission number 1727582 registered in Los Angeles County.
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27. Plaintiff is informed and believes and thereon alleges that at all times herein
mentioned, LANGUBAN was the agent and employee of defendant FEDEX.
28, Plaintiff is informed and believes and thereon alleges that LANGUBAN was
employed by FEDEX as a notary and performed the notarization of the purported grant deeds on
or about January 14, 2009, in the course and scope of her employment at a retail store of her
employer FEDEX, located on 369 Pine Street, in San Francisco California. Plaintiff is informed
and believes and thereon alleges that FEDEX benefitted generally from offering such notary
services to its customers.
29, By virtue of her position as a notary public, LANGUBAN owed a duty to Plaintiff
and all others who could be harmed by her failure to carry out her job responsibilities in a careful
and honest manner.
30. Plaintiff is informed and believes and thereon alleges that LANGUBAN breached
her duties, including, but not limited to the duties of duc care, due diligence, honesty, and
integrity. Specifically, LANGUBAN engaged in the following negligent misconduct: (1) failing
to keep a journal of her notarial acts; (2) failing to identify the party executing the instruments;
(3) misusing her official notary stamp and seal; (4) notarizing a forged signature; or alternatively,
-allowing a third party to use her official notary stamp and seal; (5) allowing her official notary
stamp and seal to be placed in an open, unlocked location so that it could be used improperly by
others; and (7) failing to retain her notary journal.
31. | FEDEX is responsible for the conduct of LANGUBAN under the doctrine of
respondeat superior.
32. Asa direct and proximate result of the negligent acts committed by LANGUBAN
and FEDEX, Plaintiff has been damaged in an amount in excess of the jurisdictional minimum of
this Court. Plaintiff will amend this complaint to set forth the full amount of said damages when
they have been more fully ascertained or proven.
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FIRST AMENDED COMPLAINT in Case No. CGC-11-512102~
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Second Cause of Action (Negligence Per Se)
(Against LANGUBAN and FEDEX and DOES 1-10)
33. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs
1 through 32.
34, California Civil Code sections 1185-1189 provides that the acknowledgement of
an instrument shall not be taken unless the acknowledging officer has satisfactory evidence that
the person making the acknowledgement is the individual who is described in and who executed
the instrument.
35. Defendant LANGUBAN violated California Civil Code sections 1185-1189 when
she acknowledged the purported signatures of Plaintiff, who never appeared before her. Plaintiff
is informed and believes and thereon alleges that LANGUBAN notarized the signature without
satisfactory evidence that the person making the acknowledgement was the individual who was
described in and who executed the instrument.
36. Plaintiff is within the class of persons and entities sought to be protected by
California Civil Code sections 1185-1189, which is intended to prevent the recording of
fraudulent documents.
37. Asadirect and proximate result of the negligent acts committed by LANGUBAN
and FEDEX, Plaintiff has been damaged in an amount in excess of the jurisdictional minimum of
this Court, Plaintiff will amend this complaint to set forth the full amount of said damages when
they have been more fully ascertained or proven. .
Third Cause of Action (Conversion)
(Against All Defendants, except LANGUBAN and FEDEX, and DOES 11-20)
38. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs
1 through 37 above.
39. Plaintiff was entitled to exclusive dominion and control over the Properties,
40. Defendants LUM, NIROULA, SHAH, EMERICH, and MARTINI &
CHOONGLE, and each of them took constructive possession of the Properties for a significant
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period of time by asserting rights of dominion and control without Plaintiff's knowledge or
consent.
41. Asa direct and proximate result of said conversion, Plaintiff was damaged in an
amount in excess of the jurisdictional minimum of this Court. Plaintiff will amend this
complaint to set forth the full amount of said damages when they have been more fully
ascertained of proven.
42. Defendants’ conduct was malicious and despicable and subjected Plaintiff to cruel
and unjust hardship in conscious disregard of Plaintiff's rights, so as to justify an award of
exemplary damages.
Fourth Cause of Action (Trespass)
(Against All Defendants, except LANGUBAN and FEDEX, and DOES 11-20)
43. Plaintiff-incorporates and repleads by this reference the allegations of Paragraphs
1 through 42.
44. Plaintiff owned the Properties.
45. Defendants LUM, NIROULA, SHAH, EMERICH, and MARTINI &
CHOONGLE, and each of them intentionally took constructive possession of the Properties
without Plaintiff's consent.
46. As a direct and proximate result of said trespasses, Plaintiff was damaged in an
amount in excess of the jurisdictional minimum of this Court. Plaintiff will amend this
complaint to set forth the full amount of said damages when they have been more fully
ascertained of proven.
47. Defendants’ conduct was malicious and despicable and subjected Plaintiff to
cruel and unjust hardship in conscious disregard of Plaintiff's rights, so as to justify an award of
exemplary damages. °
Fifth Cause of Action (Slander of Title)
(Against All Defendants and DOES 1-50)
48. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs
1 through 47.
FIRST AMENDED COMPLAINT in Case No. CGC.11-3121020 ONY DA WA eR YD Ye
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49, Pursuant to their illicit scheme, defendants LUM, NIROULA, SHAH, EMERICH,
LANGUBAN, and MARTINI & CHOONGLE slandered Plaintiff's title to the Properties by
causing to be recorded false deeds that purported to show that LUM, not Plaintiff, was the owner
of the Properties.
50. The knowingly false statements in these fraudulent deeds of trust were
maliciously made, without privilege or justification.
51. The false statements caused Plaintiff direct and immediate pecuniary loss and
damages in excess of the jurisdictional minimum of this Court, Plaintiff will amend this
complaint to set forth the full amount of said damages when they have been more fully
ascertained or proven.
52. Defendants’ conduct was malicious and despicable and subjected Plaintiff to cruel
and unjust hardship in conscious disregard of Plaintiff's rights, so as to justify an award of
exemplary damages against all Defendants.
53.
WHEREFORE, Plaintiff prays for judgment against the defendants as follows:
On all causes of action
1 For damages according to proof;
2. For prejudgment interest at the legal rate of 10% per annum;
3, For her costs of suit; and
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FIRST AMENDED COMPLAINT in Case No. CGC-11-512102oD RH DH BR WH HN
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4. For such other and further relief as the Court may deem proper.
On counts 3, 4, and 5
For punitive damages not Icess than nine times the compensatory damages
awarded.
On count 5:
For attorneys’ fees incurred in clearing tithe.
Dated: Novembef27., 2011 GLYNN & FINLEY, LLP
CLEMENT L. GLYNN
MORGAN K. LOPEZ
One Walnut Creek Center
100 Pringie Avenue, Suite 500
Walnut Creek, CA 94596
Qn BL _-
Altomeys' “Defondafta anti ff
Shirley Hwang
FIRST AMENDED COMPLAINT in Case No. CGC-11-512102~
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Lead Case No. CGC-10-503332
(consolidated for all purposes with CGC-11-512102)
PROOF OF SERVICE BY MAIL
I, Gina M. Bentley, the undersigned, hereby certify and declare under penalty of
perjury that the following statements are true and correct:
1. Tam over the age of 18 years and am not a party to the within cause.
2. My business address is One Walnut Creek Center, 100 Pringle Avenue,
Suite 500, Walnut Creek, CA 94596.
3. lam familiar with my employer’s mail collection and processing practices;
know that said mail is collected and deposited with the United States Postal Service on the same
day it is deposited in interoffice mail; and know that postage thereon is fully prepaid.
4, Following said practice, on November 30, 2011 I served a true and correct
copy of the attached document(s) entitled exactly:
FIRST AMENDED COMPLAINT FOR NEGLIGENCE, NEGLIGENCE PER SE.
CONVERSION, TRESPASS, AND SLANDER OF TITLE IN CASE NO, CGC-11-512102)
by placing it in an addressed, sealed envelope and depositing it in regularly maintained
interoffice mail to the following:,
PLEASE SEE ATTACHED SERVICE LIST
i1 at Walnut Creek, California.
Executed this 30th day of Novem
Gina M. Bentley
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PROOF OF SERVICEService List
Commonwealth Land Title Insurance Company v. FedEX Offie and Print Services Inc., et al.
San Francisco Superior Court, Case No. CGC10503332
Edward A. Kunnes, Esq.
Fidelity National Law Group
100 N. Wiget Lane, Suite 150
Walnut Creek, CA 94598
Todd Michael Austin, Esq.
Clinton & Clinton
100 Oceangate Blvd., 14th Fl.
Long Beach, CA 90802
Attorneys for Plaintiff Commonwealth Land Attorneys for Defendant Fed-Ex Office and
Title Insurance
T: (925) 930-9550; F: (925) 930-9588
Craig J. Bassett, Esq.
Attorney at Law
25 W. First Street
Morgan Hill, CA 95037-4559
Print Services, Inc.
T: (562) 216-5000; F: (562) 216-5002
Michael M. Ching, Esq.
Rachel L. Kent, Esq.
Cannata, Ching & O’Toole LLP
100 Pine Street, Suite 350
Attorneys for DefendantsJay Chandrakant San Francisco, CA 94111
Shah and Elvia Palomino
T: (408) 779-0007; F: (408) 778-6005
Frederick D. Williams, Esq.
5515 Wedekind Road
Sparks, NV 89431-1147
Attorneys for Defendant Morad Afraimi
T: (775) 358-1958; F: (775) 358-3035
Attorneys for Defendant Winston Lum
T: (415) 409-8900; F: (415) 409-8904
Richard Shikman, Esq.
15 Boardman Place
San Francisco, CA 94103
Criminal Attorney for Defendant Shah
T: (415) 863-9425; F: (415) 864-3389
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PROOF OF SERVICE
Preview
MATA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Nov-30-2011 11:14 am Case Number: CGC-10-503332 Filing Date: Nov-30-2011 11:12 Juke Box: 001 Image: 03402163 GENERIC CIVIL FILING (NO FEE) INWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE AND PRINT SERVI 001003402163 Instructions: Please place this sheet on top of the document to be scanned.w co -— ~~, —_ ut GLYNN & FINLEY, LLP CLEMENT L. GLYNN, Bar No. 57117 MORGAN K. LOPEZ, Bar No. 215513 FILED One Walnut Creek Center Superior Court o} omia 100 Pringle Avenue, Suite 500 County of 887 Fnsisco Walnut Creek, CA 94596 NOY 30 201 Telephone: (925) 210-2800 Facsimile: (925) 945-1975 CLERK OF THE COURT Attorneys for Cross-Defendant/Plaintiff BY ssa Shirley Hwang SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO Lead Case No. CGC-10-503332 COMMONWEALTH LAND TITLE INSURANCE COMPANY, (Consolidated for all purposes with CGC-11-512102) Plaintiff, FIRST AMENDED COMPLAINT FOR NEGLIGENCE, NEGLIGENCE PER SE, CONVERSION, TRESPASS, AND SLANDER OF TITLE IN CASE NO, CGC-11-512102) vs. FEDEX OFFICE AND PRINT SERVICES INC.; WINSTON LUM; KAUSHAL NIROULA; JAU CHANDRAKANT SHAH; ELVIA PALOMINO; MORAD AFRAIMI; MELVIN LEE EMERICH; MARTINI CHNOOGLE; GRACHELLE LANGUBAN; MERCHANTS BONDING COMPANY, and DOES 1-24, BY FAX CASE NO. CGC-11-512102 Defendants. SHIRLEY S. HWANG, Plaintiff, vs. FEDEX OFFICE AND PRINT SERVICES INC., WINSTON LUM, KAUSHAL NIROULA, JAY CHANDRAKANT SHAH, MELVIN LEE EMERICH, GRACHELLE LANGUBAN, and MARTINI & CHNOOGLE, and DOES 1-50, Cross-Defendants. eee See = J. > FIRST AMENDED COMPLAINT in Case No. CGC-11-512102oD mM IND HW kh wD wD hb oN NY Ye YP YP RK WH Soe oe Se ea e224 am €& OP fF SF Cae Dank SS. -_~ — Plaintiff Shirley S. Hwang (“Plaintiff”), for her Complaint against defendants FEDEX OFFICE AND PRINT SERVICES, INC., WINSTON LUM, KAUSHAL NIROULA, JAY CHANDRAKANT SHAH, MELVIN LEE EMERICH, GRACHELLE LANGUBAN, and MARTINI & CHNOOGLE alleges as follows: 1. Plaintiff is an individual and sues in her personal capacity as well as her capacity as Trustce of the Trust of Shirley S. Hwang dated July 1, 1998, and as Trustee of the 425 First Street #5501 Trust Dated September 17, 2008. At all times alleged herein she was and is an individual owning property and residing in San Francisco County, California. She is a legal and beneficial owner of the property hereinafter referred to. 2. Plaintiff is informed and believes and thereon alleges that Defendant FEDEX OFFICE AND PRINT SERVICE, INC. (“FEDEX”), is, and at all times mentioned herein was, a corporation organized and existing under and by virtue of the laws of the State of Texas and authorized to do business in the State of California. 3. Plaintiff is informed and believes and thereon alleges that defendant WINSTON LUM is, and at all times herein mentioned was, a resident of San Francisco County, California. 4. Plaintiff is informed and believes and thereon alleges that defendant KAUSHAL NIROULA is, and at all times herein mentioned was, a resident of San Francisco County, California. 5. Plaintiff is informed and believes and thereon alleges that defendant JAY CHANDRAKANT SHAH is, and at all times herein mentioned was, a resident of Santa Clara County, California. 6. Plaintiff is informed and believes and thereon alleges that defendant MELVIN LEE EMERICH is, and at all times herein mentioned was, a resident of Santa Cruz County, California, 7. Plaintiff is informed and believes and thereon alleges that defendant GRACHELLE LANGUBAN was at all times herein mentioned a resident of San Francisco County, California. Plaintiff is informed and believes and thereon alleges that LANGUBAN was Mi FIRST AMENDED COMPLAINT in Case No. CGG-11-512102wn oD wo ny a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -~ — ~~ at all relevant times a notary public employed by FEDEX at a retail office in San Francisco, California. 8. Plaintiff is informed and believes and thereon avers that FEDEX either had knowledge of LANGUBAN’S unfitness to serve as a notary public, or recklessly failed to inform itself regarding her lack of trustworthiness, and despite such knowledge, placed her in a position of trust where she could inflict severe harm on members of the public, including Plaintiff. 9. Plaintiff is informed and believes and thereon avers that FEDEX placed LANGUBAN in a position where she was able to act on behalf of FEDEX without oversight, and that she was free to determine on her own, how to carry out her duties as a notary. By granting LANGUBAN such autonomy, FEDEX effectively deputized her to act on its behalf, and to thereby bind FEDEX to the consequences of her actions. 10. Plaintiffis informed and believes and thereon alleges that defendant MARTINI & CHNOOGLE is, and at all times herein mentioned was, a Nevada Corporation established by EMERICH for the purpose of distributing wrongfully obtained loan proceeds. ll. The true names and capacities, whether individual, corporate, associate, or otherwise, of the defendants naméd herein as DOES 1 through 25, inclusive, and each of them are unknown to Plaintiff, who therefore sues them by such fictitious names (“DOE Defendants”). Plaintiff is informed and believes and thercon alleges that each of the DOE Defendants is in some manner responsible for the actions and damages alleged in this Complaint. When Plaintiff ascertains the true names and capacities of the DOE Defendants, she will amend this Complaint. 12. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, defendants, and each of them, were the agents, servants, or employees of each of the other defendants and that all of the things alleged to have been done by each defendant were done in that defendant’s capacity as agent of the other defendants, within the scope of the defendant’ s authority as agent, servant, or employee, and with the permission and consent of the other defendants. 13, Jurisdiction and venue are proper in this county as the contracts, promissory notes, grant deeds and deeds of trust at issue were executed in the City and County of San Francisco, -3- FIRST AMENDED COMPLAINT in Case No. CGC-11-512102NY A WwW bk w ) i the subject properties are located in the City and County of San Francisco, and the wrongful conduct took place in the City and County of San Francisco. GENERAL ALLEGATIONS 14, ‘In August and December 2008, Plaintiff purchased three condominiums in One Rincon Hill, a residential high-rise, commonly known as units 4802, 4902, and 5501, 425 First Street, San Francisco, California 94105 (the “Properties”). 15. Plaintiff purchased the Properties for investment with the intention of selling them shortly after purchasing them. , 16. Onor about January 14, 2009, defendants LUM, NIROULA, SHAH, LANGUBAN, and EMERICH conspired and agreed among themselves to cause to be recorded forged grant deeds purporting to transfer title in the Properties from Plaintiff to defendant LUM. True and correct copies of the purported grant deeds are attached hereto as Exhibits 1, 2 and 3.' 17. Plaintiff had no knowledge of the forgeries, did not consent to the transfer of her Properties and LUM, NIROULA, SHAH, LANGUBAN, and EMERICH had no authority to transfer the Properties. Defendant LUM had no legal ownership or any other lawful interest in Plaintiffs Properties. 18. After the purported transfer of title to LUM, LUM, NIROULA, SHAH, LANGUBAN, and EMERICH took various steps to secure loans on the Properties. 19, On March 20, 2009, Plaintiff filed two separate lawsuits to quiet title to the Properties in San Francisco County Superior Court, Case No. CGC-09-486395 and Case No. CGC-09-486391. 20. On or about July 8 2010, Plaintiff obtained default judgments against LUM in both actions, quieting title in her name with respect to the Properties. 1 Plaintiffis informed and believes and thereon alleges that on or about February 28, 2009, in the course and scope of her employment as a notary at a FEDEX retail store, LANGUBAN performed the notarization of documents relating to the residence located at 188 Minna Street, Apt. 29A, San Francisco, CA, 94105, of which Plaintiff is also the legal and beneficial owner. This notarization was done without Plaintiff's knowledge or consent. A true and correct copy of one of these notarized documents is attached hereto as Exhibit 4. FIRST AMENDED COMPLAINT in Case No. CGC-11-512102nA fF w -_ ~ New wt 21. Plaintiff finally regained marketable title to her Properties on or about August 2010. 22. Investigations by the San Francisco Police Department Economic Crimes Unit revealed that these defendants collectively conspired to forge the grant deeds in an attempt to wrongfully convey legal title to LUM to obtain money from loan proceeds. The police investigation, which concluded that Plaintiff was a victim of real estate fraud, resulted in felony criminal complaints being filed against LUM, NIROULA, SHAH, and EMERICH in the Superior Court of the State of California City and County of San Francisco Action Numbers 10009191, 1009193, and 10003838, which proceedings are currently pending. The investigation also resulted in a felony criminal complaint being filed against LANGUBAN in the Superior Court of the State of California City and County of San Francisco Action Number 10018652. The complaint charges LANGUBAN with, among other things, violating Penal Code sections 182(a)(1) (conspiracy), 487({a) (grand theft) (2 counts) 115(a) and 115.5(a) (filing false deeds) (3 counts each), 530.5(a) (unauthorized use of personal information), 118(a) (perjury) (3 counts), 470(c) (forgery of evidence) (3 counts) and 470(d) (forgery of a contract) (3 counts). After being released on bail, LANGABUN fled the country. 23. Asa direct result of defendants’ conduct, the Properties were encumbered and not marketable until August 2010. 24. As a result, Plaintiff has sustained extensive financial losses, including lost sales opportunities, lost rental income, loss of income, fees paid to recover title to the property, emotional distress and other losses that will be shown. First Cause of Action (Negligence) (Against LANGUBAN and FEDEX and DOES 1-10) 25. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs 1 through 24. 26, Defendant LANGUBAN held herself out as a California Notary Public with commission number 1727582 registered in Los Angeles County. Mi _-5- FIRST AMENDED COMPLAINT in Case No. CGC-11-512102Co Om YN BD A hw He ee a a a ea oN DA DA BF YW NY BS GS 19 ; ~ ew se 27. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, LANGUBAN was the agent and employee of defendant FEDEX. 28, Plaintiff is informed and believes and thereon alleges that LANGUBAN was employed by FEDEX as a notary and performed the notarization of the purported grant deeds on or about January 14, 2009, in the course and scope of her employment at a retail store of her employer FEDEX, located on 369 Pine Street, in San Francisco California. Plaintiff is informed and believes and thereon alleges that FEDEX benefitted generally from offering such notary services to its customers. 29, By virtue of her position as a notary public, LANGUBAN owed a duty to Plaintiff and all others who could be harmed by her failure to carry out her job responsibilities in a careful and honest manner. 30. Plaintiff is informed and believes and thereon alleges that LANGUBAN breached her duties, including, but not limited to the duties of duc care, due diligence, honesty, and integrity. Specifically, LANGUBAN engaged in the following negligent misconduct: (1) failing to keep a journal of her notarial acts; (2) failing to identify the party executing the instruments; (3) misusing her official notary stamp and seal; (4) notarizing a forged signature; or alternatively, -allowing a third party to use her official notary stamp and seal; (5) allowing her official notary stamp and seal to be placed in an open, unlocked location so that it could be used improperly by others; and (7) failing to retain her notary journal. 31. | FEDEX is responsible for the conduct of LANGUBAN under the doctrine of respondeat superior. 32. Asa direct and proximate result of the negligent acts committed by LANGUBAN and FEDEX, Plaintiff has been damaged in an amount in excess of the jurisdictional minimum of this Court. Plaintiff will amend this complaint to set forth the full amount of said damages when they have been more fully ascertained or proven. uj MW Mf FIRST AMENDED COMPLAINT in Case No. CGC-11-512102~ — Nene? Second Cause of Action (Negligence Per Se) (Against LANGUBAN and FEDEX and DOES 1-10) 33. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs 1 through 32. 34, California Civil Code sections 1185-1189 provides that the acknowledgement of an instrument shall not be taken unless the acknowledging officer has satisfactory evidence that the person making the acknowledgement is the individual who is described in and who executed the instrument. 35. Defendant LANGUBAN violated California Civil Code sections 1185-1189 when she acknowledged the purported signatures of Plaintiff, who never appeared before her. Plaintiff is informed and believes and thereon alleges that LANGUBAN notarized the signature without satisfactory evidence that the person making the acknowledgement was the individual who was described in and who executed the instrument. 36. Plaintiff is within the class of persons and entities sought to be protected by California Civil Code sections 1185-1189, which is intended to prevent the recording of fraudulent documents. 37. Asadirect and proximate result of the negligent acts committed by LANGUBAN and FEDEX, Plaintiff has been damaged in an amount in excess of the jurisdictional minimum of this Court, Plaintiff will amend this complaint to set forth the full amount of said damages when they have been more fully ascertained or proven. . Third Cause of Action (Conversion) (Against All Defendants, except LANGUBAN and FEDEX, and DOES 11-20) 38. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs 1 through 37 above. 39. Plaintiff was entitled to exclusive dominion and control over the Properties, 40. Defendants LUM, NIROULA, SHAH, EMERICH, and MARTINI & CHOONGLE, and each of them took constructive possession of the Properties for a significant Mf -7> FIRST AMENDED COMPLAINT in Case No. CGC-11-512102oD Oo IY A Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~ “ at period of time by asserting rights of dominion and control without Plaintiff's knowledge or consent. 41. Asa direct and proximate result of said conversion, Plaintiff was damaged in an amount in excess of the jurisdictional minimum of this Court. Plaintiff will amend this complaint to set forth the full amount of said damages when they have been more fully ascertained of proven. 42. Defendants’ conduct was malicious and despicable and subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff's rights, so as to justify an award of exemplary damages. Fourth Cause of Action (Trespass) (Against All Defendants, except LANGUBAN and FEDEX, and DOES 11-20) 43. Plaintiff-incorporates and repleads by this reference the allegations of Paragraphs 1 through 42. 44. Plaintiff owned the Properties. 45. Defendants LUM, NIROULA, SHAH, EMERICH, and MARTINI & CHOONGLE, and each of them intentionally took constructive possession of the Properties without Plaintiff's consent. 46. As a direct and proximate result of said trespasses, Plaintiff was damaged in an amount in excess of the jurisdictional minimum of this Court. Plaintiff will amend this complaint to set forth the full amount of said damages when they have been more fully ascertained of proven. 47. Defendants’ conduct was malicious and despicable and subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff's rights, so as to justify an award of exemplary damages. ° Fifth Cause of Action (Slander of Title) (Against All Defendants and DOES 1-50) 48. Plaintiff incorporates and repleads by this reference the allegations of Paragraphs 1 through 47. FIRST AMENDED COMPLAINT in Case No. CGC.11-3121020 ONY DA WA eR YD Ye mB RM PY YN NHN De ew ew Ow —~ -— a, wear ww 49, Pursuant to their illicit scheme, defendants LUM, NIROULA, SHAH, EMERICH, LANGUBAN, and MARTINI & CHOONGLE slandered Plaintiff's title to the Properties by causing to be recorded false deeds that purported to show that LUM, not Plaintiff, was the owner of the Properties. 50. The knowingly false statements in these fraudulent deeds of trust were maliciously made, without privilege or justification. 51. The false statements caused Plaintiff direct and immediate pecuniary loss and damages in excess of the jurisdictional minimum of this Court, Plaintiff will amend this complaint to set forth the full amount of said damages when they have been more fully ascertained or proven. 52. Defendants’ conduct was malicious and despicable and subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff's rights, so as to justify an award of exemplary damages against all Defendants. 53. WHEREFORE, Plaintiff prays for judgment against the defendants as follows: On all causes of action 1 For damages according to proof; 2. For prejudgment interest at the legal rate of 10% per annum; 3, For her costs of suit; and Af Mt ut Mt Uf Ml Mt Mt it -9- FIRST AMENDED COMPLAINT in Case No. CGC-11-512102oD RH DH BR WH HN “~ ~ we wea 4. For such other and further relief as the Court may deem proper. On counts 3, 4, and 5 For punitive damages not Icess than nine times the compensatory damages awarded. On count 5: For attorneys’ fees incurred in clearing tithe. Dated: Novembef27., 2011 GLYNN & FINLEY, LLP CLEMENT L. GLYNN MORGAN K. LOPEZ One Walnut Creek Center 100 Pringie Avenue, Suite 500 Walnut Creek, CA 94596 Qn BL _- Altomeys' “Defondafta anti ff Shirley Hwang FIRST AMENDED COMPLAINT in Case No. CGC-11-512102~ it {) Lead Case No. CGC-10-503332 (consolidated for all purposes with CGC-11-512102) PROOF OF SERVICE BY MAIL I, Gina M. Bentley, the undersigned, hereby certify and declare under penalty of perjury that the following statements are true and correct: 1. Tam over the age of 18 years and am not a party to the within cause. 2. My business address is One Walnut Creek Center, 100 Pringle Avenue, Suite 500, Walnut Creek, CA 94596. 3. lam familiar with my employer’s mail collection and processing practices; know that said mail is collected and deposited with the United States Postal Service on the same day it is deposited in interoffice mail; and know that postage thereon is fully prepaid. 4, Following said practice, on November 30, 2011 I served a true and correct copy of the attached document(s) entitled exactly: FIRST AMENDED COMPLAINT FOR NEGLIGENCE, NEGLIGENCE PER SE. CONVERSION, TRESPASS, AND SLANDER OF TITLE IN CASE NO, CGC-11-512102) by placing it in an addressed, sealed envelope and depositing it in regularly maintained interoffice mail to the following:, PLEASE SEE ATTACHED SERVICE LIST i1 at Walnut Creek, California. Executed this 30th day of Novem Gina M. Bentley -1- PROOF OF SERVICEService List Commonwealth Land Title Insurance Company v. FedEX Offie and Print Services Inc., et al. San Francisco Superior Court, Case No. CGC10503332 Edward A. Kunnes, Esq. Fidelity National Law Group 100 N. Wiget Lane, Suite 150 Walnut Creek, CA 94598 Todd Michael Austin, Esq. Clinton & Clinton 100 Oceangate Blvd., 14th Fl. Long Beach, CA 90802 Attorneys for Plaintiff Commonwealth Land Attorneys for Defendant Fed-Ex Office and Title Insurance T: (925) 930-9550; F: (925) 930-9588 Craig J. Bassett, Esq. Attorney at Law 25 W. First Street Morgan Hill, CA 95037-4559 Print Services, Inc. T: (562) 216-5000; F: (562) 216-5002 Michael M. Ching, Esq. Rachel L. Kent, Esq. Cannata, Ching & O’Toole LLP 100 Pine Street, Suite 350 Attorneys for DefendantsJay Chandrakant San Francisco, CA 94111 Shah and Elvia Palomino T: (408) 779-0007; F: (408) 778-6005 Frederick D. Williams, Esq. 5515 Wedekind Road Sparks, NV 89431-1147 Attorneys for Defendant Morad Afraimi T: (775) 358-1958; F: (775) 358-3035 Attorneys for Defendant Winston Lum T: (415) 409-8900; F: (415) 409-8904 Richard Shikman, Esq. 15 Boardman Place San Francisco, CA 94103 Criminal Attorney for Defendant Shah T: (415) 863-9425; F: (415) 864-3389 -2- PROOF OF SERVICE