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

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Law Offices of
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA
95037-4559
(408) 779.0007

Craig J. Bassett (SB# 106825)
Attorney at Law

25 W. First Street

Morgan Hill, CA 95037-4559

TEL (408) 779-0007 EMAIL cbassett@garlic.com

Yauheni V Halavanau (SB# 267280)
Law Offices of Gene Halavanau

55 Francisco Street, Suite 403

San Francisco, CA 94133-2115

TEL (415) 692-5301 EMAIL

Attorneys for Defendant
JAY CHANDRAKANT SHAH

ene@halavanau.com

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

10/31/2017
Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
Civil Division, 400 McAllister Street, San Francisco, California 94102-4514
(Unlimited Jurisdiction Civil Case)

COMMONWEALTH LAND TITLE
INSURANCE COMPANY;

Plaintiff,
vs.

FEDEX OFFICE AND PRINT
SERVICES, INC.; WINSTON LUM;
KAUSHAL NIROULA; JAY
CHANDRAKANT SHAH; ELVIA
PALOMINO; MORAD AFRAIMI,
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)

Second Mid-Trial Brief by Defendant Shah

Lead Case No. CGC-10-503332
(Consolidated with CGC-11-512102)

SECOND MID-TRIAL BRIEF BY
DEFENDANT SHAH

Trial:

Dept.:
Judge:
Place:

Clerk:

August 7 to 11, 2017 and

August 14, 2017

303

Hon. Newton J. Lam

Civil Division, 400 McAllister Street
San Francisco, California 94102-4514
415-551-3726

Continued Trial Date: Nov 08 2017 9:00 a.m.

October 31, 2017wv

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Law Offices of 27
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA
95037-4559
(408) 779.0007

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.

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 $14.10 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
on behalf of Hwang the total sum of $4,352,463.70 (as modified), consisting of the following

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Law Offices of 27
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA

95037-4559

(408) 779.0007

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
and 4902 (owned by Hwang) in January 2009 was $1,225,000.

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Second Mid-Trial Brief by Defendant Shah October 31, 2017wv

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Law Offices of 27
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA
95037-4559
(408) 779.0007

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 Jimine, Shah asked the court to apply the
principle of collateral estoppel to the findings of fact re economic damages claimed by Hwang in the
restitution proceedings. The Court reserved ruling on that motion. The Court has yet to rule on that
motion and has neither denied nor granted it as of this date. Before trial began, neither party
requested by motion in /imine 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
present documentary evidence of Shah’s present financial condition. Notwithstanding, the Court
acceded to Hwang’s 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

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Second Mid-Trial Brief by Defendant Shah October 31, 20171 || evidence, primarily relying on the collateral estoppel effect applied to Shah’s criminal convictions,

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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

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4 || defendant on the issue of his financial condition, after receipt of documentation going to that issue
5 || to be produced to Hwang in advance of that hearing date, as if pre-trial discovery were still open.

6 On the last day of the first part of trial the court invited each side to give its “closing
7 || argument” orally in open court. The parties complied. During his closing argument, Shah expressly
8 || took exception to the confusing and unusual procedural posture of the case of effective bifurcation
9 || mid-trial to accommodate plaintiff's failure to be prepared to prove her punitive damages claim to
10 || her satisfaction. The Court also indicated that it wanted from each of the parties a “proposed
11 }| statement of decision” by Oct 31 2017. There has been no tentative decision announced from the
12 || bench in this matter, save for announcing that there is sufficient evidence to impose liability for
13 || punitive damages. There has been no written tentative decision either. There has been no ruling on
14 || Shah’s motion in limine asking to apply collateral estoppel, despite that the Court solicited and

15 || obtained from the parties a mid-trial brief on that issue.

16 |] OL Objection to Court’s Premature Request for “Proposed Statement of Decision”.

17 As mentioned above, the Court has not issued a written tentative decision in this matter. As
18 || well, the Court has not announced from the bench a tentative decision in this matter. The
19 || announcement from the bench on the last day shown above for trial (Aug 14 2017) that the Court
20 || has found that it is appropriate to continue the trial date to the later date shown above (Nov 08 2017),
21 || for the purpose of allowing plaintiff Hwang to obtain documents related to Shah’s financial
22 || condition pursuant to a post-trial court order directed to defendant Shah with required production
23 || on or before Oct 31 2017 does not necessarily amount to a bifurcation of this trial. The Court has
24 || not announced any tentative decision orally from the bench regarding liability or damages. As such,

25 || there could not be at this point a bifurcation, since the Court apparently has no intent up until now

Law offices of 26 |] to make a tentative decision sufficient to go on to the next step of a statement of decision. In other
CratG J. Bass
SEW Finest

Morgan Hill, CA -5-

95037-4559
(408) 779-0007 Second Mid-Trial Brief by Defendant Shah October 31, 2017wv

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Law Offices of 27
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA

95037-4559

(408) 779.0007

words, Shah cannot under the rules of civil procedure comply with the Court’s request for a proposed
statement of decision.

Code of Civil Procedure section 632 provides, in relevant part: “In superior courts, upon the
trial of a question of fact by the court, written findings of fact and conclusions of law shall not be
required. The court shall issue a statement of decision explaining the factual and legal basis for its
decision as to each of the principal controverted issues at trial upon the request of any party
appearing at the trial. The request must be made within 10 days after the court announces a tentative
decision. .... The request for a statement of decision shall specify those controverted issues as to
which the party is requesting a statement of decision. After a party has requested the statement, any
party may make proposals as to the content of the statement of decision.” [Code Civ. Proc., § 632
(italics added).]

California Rules of Court, rule 3.1590 governs tentative decisions, statements of decision,
and judgments in court trials. It provides, in relevant part, that “[o]n the trial of a question of fact
by the court, the court must announce its tentative decision by an oral statement, entered in the
minutes, or by a written statement filed with the clerk.” [Cal. Rules of Couret, rule 3.1590(a) (italics
added).] The Court has not complied with this mandatory rule. Hence, it would be premature to
request that the parties prepare a proposed statement of decision in this matter.

Subpart (d) of Rule 3.1590 provides: “Within 10 days after announcement or service of the
tentative decision, whichever is later, any party that appeared at trial may request a statement of
decision to address the principal controverted issues. The principal controverted issues must be
specified in the request.” [/d., subpart (d).] And, if any party requests a statement of decision, any
other party may make proposals regarding the content of the statement of decision within 10 days
after a statement of decision is requested. [/d., subpart (e).] Rule 3.1590 also contains provisions
governing the preparation and service of a proposed statement of decision and judgment by the court
ora party and for objecting to the proposed statement of decision or judgment. [/d., subparts (£)-(j).]
In this case, even though the parties have already indicated their intent to request a statement of
decision, neither party has requested a statement of decision within 10 days after the trial court

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Second Mid-Trial Brief by Defendant Shah October 31, 20171 || announced or served a tentative decision.

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Shah acknowledges that the trial court has the discretion to control the order of proof and the

proper organization of the issues before it. [See Grappo v. Coventry Financial Corp. (1991) 235

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4 || Cal.App.3d 496 , 504 (“trial courts have broad discretion to determine the order of proof in the
5 || interests of judicial economy”); see also Code Civ. Proc., § 1048, subd. (b) (“The court, in
6 || furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to
7 || expedition and economy, may order a separate trial of any cause of action, including a cause of
8 || action asserted in a cross-complaint, or of any separate issue or of any number of causes of action
9 || or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or
10 || of the United States.”).] However, Shah does not concede that there has been a proper bifurcation
11 |] of this civil trial sufficient to require the parties to either request or submit a proposed statement of
12 }| decision at this stage of the proceedings. Bifurcation would necessitate a tentative decision before
13 || the next “phase” of trial. That precursor is completely lacking here.

14 The time is not yet ripe for proposals or argument regarding a statement of decision.
15 || Accordingly, Shah cannot in good conscience comply with the Court’s request for a proposed
16 || statement of decision. Therefore, Shah objects to the Court’s request for a proposed statement of
17 || decision at this stage of the proceedings. Further, Shah objects to the request of the Court to submit
18 || simultaneously a proposed statement of decision. Without the proper order set forth by the Code and
19 || Rules dictating how a proper statement of decision should be arrived at, Shah will suffer prejudice.
20 || Instead of a proposed statement of decision, Shah will submit in its place another mid-trial brief
21 || addressing non-comprehensively various issues which Shah deems of importance and relevant to the
22 || oral and documentary evidence presented and admitted to date during trial. Shah also respectfully
23 || an opportunity to respond to any mid-trial or post-trial brief submitted by plaintiff Hwang, before
24 || the Court makes a tentative decision, statement of decision, or final judgment. Shah also requests
25 || the opportunity to submit a brief on the issue of punitive damages after the continued hearing on that
26 || issue.

Law Offices of

CRAIG J. BASSETT

25 W, First Strect

Morgan Hill, CA -7-
95037-4559

(408) 779-0007 Second Mid-Trial Brief by Defendant Shah October 31, 2017vv

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Law Offices of 27
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA

95037-4559

(408) 779.0007

TH. Issues and Analysis.

1. Collateral Estoppel.

Shah incorporates herein his mid-trial brief on the issue of collateral estoppel effect of the
restitution order. There should be no confusion about this principle here.

While it is true that a party is entitled to a civil trial in addition to a criminal restitution
proceeding, it is not true that a party can rely on part of the outcome of the restitution proceeding as
its sole proof of damages, and at the same time reject other parts merely because that party disagrees
with the outcome. The Court herein prevented Shah from challenging Hwang on her claim for
attorney fees, taking the position during trial that Hwang need not prove entitlement or amount of
damages for that component, because it had already been decided in the restitution proceeding.
There is no error in this position; however, once the Court made that decision to apply the principal
of collateral estoppel to that aspect of the restitution proceeding, it cannot then pick and choose to
apply collateral estoppel to other aspects. The Court seems to be confused about one-sided
application of the collateral estoppel or res judicata effect of the criminal conviction proceedings
compared to the restitution proceedings. They are not both parts of the same proceeding.

Hwang cannot aright “have her cake and eat it too” in this instance. She has effectively
demanded that the Court apply collateral estoppel to some items of damages awarded in the
restitution hearing, but not apply collateral estoppel to the items of damages denied in that same
proceeding. As well, when she disputes the amount awarded in the restitution order, she wants this
Court to ignore those binding findings. Hwang’s approach is inconsistent and violates the rules
governing collateral estoppel. Once that doctrine applies, it cannot be parsed and then used to decide
that some issues are settled and others are not simply because the party relying on that doctrine wants
it that way. Collateral estoppel applies as explained in Shah’s previously filed mid-trial brief. That
means that Hwang’s economic damages in this case equal and do not exceed the principal sum of
$311,767.05. As far as non-economic damages, the Court is able to judge for itself that Hwang did
not suffer extreme emotional distress on account of her title being clouded, but rather merely as a
result of becoming a “full-time professional litigator” of her own choice.

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Second Mid-Trial Brief by Defendant Shah October 31, 20171 2. Credibility of Shirley Hwang.

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Shah also incorporates herein his oral closing argument regarding the credibility of Hwang

as a witness. Hwang outright lied about her income in years previous to the forged grant deed to

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4 || Lum recorded in January 2009. She also told under oath other material untruths, like facts
5 || concerning the degree of her own participation in the restitution proceedings. She should not be
6 || believed in all of her testimony. Further, this character of prevarication clearly demonstrates the
7 || overreaching of her entire claim against Shah. She looks upon her victim status as an opportunity
8 || for financial gain, not to recover for loss. She has made her mark with a huge recovery from FedEx
9 || Gin the amount to which she testified which is confidential outside this proceeding). She has a
10 || judgment for restitution from Shah in an appropriate amount made by a judge who spent days and
11 || days hearing evidence and considering the parties’ various positions and claims. Hwang, not
12 || satisfied, wants more. But she has not provided evidence sufficient to justify more.

13 Her employment expert clearly testified that it would take 4+ years to get back into the same
14 || employment position at the same level of compensation as Hwang once voluntarily quit. It is
15 || undeniable that the downturn in the real estate market also made her prospects of re-employment as
16 || a mortgage banker bleak. Hwang suffered no loss of income here.

7 Her real estate valuation expert was nothing more than a “hired gun”. He testified of a
18 || valuation for the lower units which made no sense and which directly contradicts the proper and
19 || well-reasoned findings of this Court at the restitution hearing and those made during the criminal
20 || proceedings. His testimony was simply “bought and paid for” without regard to the truth. It must

21 || be ignored as unconvincing. This is a moot point anyway because of the effect of collateral estoppel.

22 3. Conversion.

23 In her third amended complaint (TAC) Hwang claimed damages for “conversion” of her real
24 || property. There is no other allegation of a taking in relation to this cause of action. Hwang had
25 || years to consider her allegations. Her TAC was filed years after Shah was convicted. She should

Law offices of 26 |] not be allowed to materially vary from these allegations.
CRAIG J. BaSserT
25 W. Fist Strest
Morgan Hill, CA -9-
95037-4559
(408) 779.0007 Second Mid-Trial Brief by Defendant Shah October 31, 2017wv

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Conversion does not apply to real property. [Munger v. Moore (1970) 11 Cal.App.3d 1, 7.]
So this Court suggested during trial that maybe she meant conversion of her “identity” since Shah
had been convicted of “identity theft”. This, however, besides the problem of the Court rushing to
plaintiff's aid for failing to state facts sufficient to even constitute such a cause of action, does not
work for the reason that Shah absolutely did not steal Hwang’s identity to obtain credit under her
name. He did not even “take” her real property. The deed to Lum was void ab initio because it was
forged. It did not transfer title to the condominiums to Lum. As a matter of law, the recorded deed
simply clouded the title of record, which only those who searched that record would know about.
Once she filed her action to quiet title with its accompanying /is pendens, a search of the public
record would reveal the contested status of the deeds. She filed her action for quiet title shortly after
in about April 2009. At that point everyone who searched the public record was on notice that the
deed was forged.

In connection with identity theft, Shah was found “guilty of a public offense” [Pen. Code,

§ 530.5, subd. (a) (italics added)]. This does not automatically qualify as res judicata proof of a
private right to recover damages. We cannot know exactly what facts the jury relied on to convict
Shah. But we can know that in this civil case Hwang has failed to establish by a preponderance of
the evidence how, if at all, “identity theft” amounted to personal property which was “taken” from
her. Were she to claim such a taking, it could not be explained in plain terms which fit common
sense. That makes such a claim illegitimate.

Moreover, Hwang never lost use of any of her condominiums— not for one second. Shah
did not take one dollar’s worth of property of any kind from Hwang. Hwang owned her units
outright at all relevant times. Hwang’s name was not used to obtain any credit and therefore her
creditworthiness could not have been adversely affected by anything Shah did. “[A]ny act of
dominion wrongfully exerted over the personal property of another inconsistent with the owner’s
rights thereto constitutes conversion.” [Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38,
50 (italics added).] Hwang has not proved facts sufficient to meet each required element of
conversion. So Hwang cannot recover any damages or other relief under this cause of action.

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Second Mid-Trial Brief by Defendant Shah October 31, 20171 4, Trespass.

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Hwang claims that Shah trespassed on her property. To establish this claim, Hwang must

prove all of the following: (1) That Hwang owned the property; (2) That Shah intentionally entered

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4 || Hwang’s property; (3) That Hwang did not give permission for the entry; (4) That Hwang was
5 |} actually harmed; and (5) That Shah’s entry was a substantial factor in causing Hwang’s harm. The
6 || first two (2) elements are undisputed. The third (3) is in question because Hwang knew that her
7 || “partner” Shigezane was showing the unit to prospective purchasers like Niroula, which is the reason
8 || why Shah was there with him on the one occasion where Shah entered the units for a few minutes.
9 || The fourth (4") and fifth (5) elements go to causation. One must ask here how, ifat all, was Shah’s
10 || entry into her condominiums for a few minutes, while they were under Hwang’s thinking available
11 }| to be shown for sale, a substantial factor in causing Hwang any harm? And even if so, what harm
12 || did she suffer because of that entry. The answer to these questions under the facts of this case is that
13 || she was not harmed in the least.
14 “Once a cause of action for trespass or nuisance is established, an occupant of land may
15 || recover damages for annoyance and discomfort that would naturally ensue therefrom.” [Kornoff v.
16 || Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 272.] “We do not question that a nonresident
17 || property owner may suffer mental or emotional distress from damage to his or her property. But
1g || annoyance and discomfort damages are distinct from general damages for mental and emotional
19 || distress. Annoyance and discomfort damages are intended to compensate a plaintiff for the loss of
20 || his or her peaceful occupation and enjoyment of the property. ... ‘We recognize that annoyance and
21 || discomfort by their very nature include a mental or emotional component, and that some dictionary
22 || definitions of these terms include the concept of distress. Nevertheless, the “annoyance and
23 || discomfort” for which damages may be recovered on nuisance and trespass claims generally refers
24 || to distress arising out of physical discomfort, irritation, or inconvenience caused by odors, pests,
25 || noise, and the like. Our cases have permitted recovery for annoyance and discomfort damages on
26 || nuisance and trespass claims while at the same time precluding recovery for “pure” emotional

Law Offices of 27 |] distress.’ ” [Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456 (internal citations
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(408) 779-0007 Second Mid-Trial Brief by Defendant Shah October 31, 2017wv

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CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA

95037-4559

(408) 779.0007

omitted).]

Hwang was not in immediate possession of any of the premises when Niroula, the appraiser,
and Shah entered. She might have found out after the fact about the visit. But it did not affect her
immediately upon the visit. Here, even if arguendo trespass liability could be established,
“annoyance and discomfort” damages would be nominal. Hwang has not proven causation and has
not proven any harm under this cause of action. The Court should remember that, even ifit disagrees
with the foregoing analylsis, Hwang is not entitled to “emotional or mental distress” damages for

trespass.

5. Slander of Title.

Penal Code section 115, subdivision (a), reads: “Every person who knowingly procures or
offers any false or forged instrument to be filed, registered, or recorded in any public office within
this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this
state or of the United States, is guilty of a felony.” [Pen. Code. § 115, subd. (a).] Shah’s conviction
rests upon the jury’s finding that he assisted or caused the three (3) forged Lum deeds to be recorded
and the three (3) deeds of trust to the third-party lenders to be recorded.

Slander of title may be either by words or an act that clouds title to the property. [See, e.g.,
Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 661.]
“Slander of title ‘occurs when a person, without a privilege to do so, publishes a false statement that
disparages title to property and causes pecuniary loss. [Citation.]’ The false statement must be
‘“maliciously made with the intent to defame.” ’”. [Cyr v. McGovran (2012) 206 Cal. App.4th 645,
651.] Shah was convicted of filing false deeds and deeds of trust. There is little dispute that this fact
affected Hwang’s title adversely by requiring her to file a quict title action against Lum and the
lenders.

The question of the presence of a malicious intent to defame Hwang is a question of fact
here. “One who publishes a false statement harmful to the interests of another is subject to liability
for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in

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Second Mid-Trial Brief by Defendant Shah October 31, 2017wv

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harm to interests of the other having a pecuniary value, or either recognizes or should recognize that
it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its
truth or falsity.” [Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 (quoting Rest. 2d Torts §
623A).] Quite aside from whether there is “malice”, “fraud”, or “oppression” justifying the
imposition of exemplary damages here, Hwang must prove by a preponderance of the evidence a
malicious intent on the part of Shah to defame her. What is the evidence adduced at trial to support
this allegation. There is none. Shah may have wanted to obtain money from a lender. But that is
a far cry from proof of an intent to harm Hwang.

Furthermore, the Court precluded Shah from testifying on any aspect of the forged deeds.
This evidence preclusion prevented a weighing of the evidence in this case on the directly relevant
factual issue (to the cause of action for trespass) of whether Shah acted with malice. Such proof is
required to prevail in the cause of action. Hwang has failed to meet here burden here and is not
entitled to any damages.

Even so, in her TAC Hwang recognizes that pecuniary loss is the gist ofher action. She does
not allege emotional distress, nor does she pray for emotional distress damages connected with
slander of title (albeit she does allege entitlement to punitive damages). Special verdict form
VF-1720 in CACTI has a column for writing in “economic loss”. That is the sole category of non-
punitive damages available to Hwang under this cause of action. She has already been awarded an

appropriate amount in the restitution proceedings. The Court may, at best for Hwang, “duplicate”

that award here when applying collateral estoppel. But it does not entitle Hwang to duplicate

recovery. Nor does it entitle her to recover any damages for “emotional distress” of any kind.

6. Setoff.

Proposition 51 makes each defendant’s liability for noneconomic damages several and in
proportion to the defendant’s fault, rather than joint and several. [Civ. Code, § 1431.2, subd. (a).]
The express purpose of Proposition 51 is to limit each defendant’s liability to a proportion of the
plaintiff's damages that more closely approximates the defendant's degree of fault. [Civ. Code, §

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Second Mid-Trial Brief by Defendant Shah October 31, 2017wv

we

26

Law Offices of 27
CRAIG J. BASSETT
25 W, First Strect
Morgan Hill, CA

95037-4559

(408) 779.0007

1431.1, subd. (c) (“to remedy these inequities, defendants in tort actions shall be held financially
liable in closer proportion to their degree of fault”).] Proposition 51 accomplishes this by limiting
each defendant’s liability for noneconomic damages to an amount in proportion to that defendant’s
percentage of fault. [Civ. Code, § 1431.2, subd. (a); see also Evangelatos v. Superior Court (1988)
44 Cal.3d 1188, 1204.] Proposition 51 affects the way that a setoff under Code of Civil Procedure
section 877 is calculated and applied. In an action subject to Proposition 51, “the claims against the
others” [§ 877, subd. (a)] are not unitary claims for damages. Rather, each defendant is liable for
separate amounts of economic and noneconomic damages; the former liability is joint and several,
while the latter liability is only several. A good faith settlement therefore must be apportioned
between economic and noneconomic damages before a setoff can be applied.

Civil Code section 1431.2, subdivision (a) states: “In any action for personal injury, property
damage, or wrongful death, based upon principles of comparative fault, the liability of each
defendant for non-economic damages shall be several only and shall not be joint. Each defendant
shall be liable only for the amount of non-economic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against
that defendant for that amount.” [Civ. Code, § 1431.2, subd. (a).] Thus, in an action subject to
Proposition 51 (applicable to the present case) each tortfeasor remains jointly and severally liable
to the plaintiff for economic damages, but is liable to the plaintiff for only its proportionate share
of noneconomic damages. [DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 600.] What this means
in this case is that Hwang has recovered all of here economic damages from FedEx and an
extraordinary amount for non-economic damages, if she even truly be entitled to recover the same
from Shah herein. Hwang has been fully compensated for any and all harm caused by the deeds and
deeds of trust clouding her title. She is not entitled to a windfall. But that is exactly what she seeks
herein— something for nothing. The Court should not grant such a request.

It is obvious in this matter from her demeanor during trial testimony and from other relevant
circumstances that Hwang realizes she is asking for something for nothing here by the way she lies
on the witness stand with no compunction for offering false testimony, and by showing inappropriate

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Second Mid-Trial Brief by Defendant Shah October 31, 2017