邱彰律師

Dr. CHANG C. CHEN, Esq., SBN 118727
LAW OFFICE OF Dr. CHANG C. CHEN
7304 Pebble Beach Drive
El Cerrito, California 94530
Tel. (510) 685-8988; Fax (510) 235-9151

JAMES A. RAINBOLDT, ESQ., SBN 101216
FRANCIS X. FLYNN, ESQ., SBN 131919
LAW OFFICES OF JAMES A. RAINBOLDT
10833 Valley View Street, Suite 250
Cypress, California 90630
Tel. (714) 236-8930; Fax (714) 826-1791

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, NORTHEAST DISTRICT
SONG YANG, et al.,
Plaintiffs,
vs.
WANG YOU-THENG aka WANG YOUTHENG aka YOU-THENG WANG; WANG SHE-YING CHIN aka WANG CHI SHE YING aka SHEYING C. WANG aka CHIN SHE-YING; WANG LIN-HSING aka LAWRENCE WANG; and WANG LIN-CHIAO,

Defendants. )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Case No.: GC 038586 [Consolidated with case numbers GC 038830 and GC 039107]

[Assigned to Hon. Joseph F. DeVanon; Dept. “S”]

PLAINTIFFS’ OPPOSITION TO DEFENDANT, WANG YOU-THENG’S DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES

Date: July 8, 2008
Time: 8:30 a.m.
Dept.: “S”

Action Filed: June 15, 2006
)
)

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
Plaintiffs, SONG YANG, et al. [hereafter “Plaintiffs”], hereby submit their Opposition to Defendant, WANG YOU-THENG’S [hereafter “Defendant”] Demurrer to Plaintiffs’ First Amended Complaint.
///

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiffs, residents of Taiwan bring the present action for, inter alia, fraud, intentional misrepresentation, and breach of contract arising out of a series of financial transactions between defendant [acting in concert with co-defendants and their agents] and plaintiffs. Defendant, co-defendants and all of their respective agents are Taiwanese nationals who, at the time of the transactions and until recently were domiciled in Taiwan. All of the transactions, which are the subject of this lawsuit both occurred and were to be performed in Taiwan.
The essence of plaintiffs’ First Amended Complaint is that defendants are liable for fraudulent misrepresentations of material facts made with the intent to induce plaintiffs to invest in defendants’ newly formed corporation, Asia Pacific Broadband Telecommunication Company [hereinafter “Don Sun / APB”]. The Defendants fraudulently represented, among other things, that the newly formed corporation would have a virtual monopoly on Taiwan’s broadband telecommunication industry, based on defendants’ exclusive license agreement to use the extensive fiber optic communication system owned and controlled by the Taiwan Railway. Defendants made other misrepresentations, such as money invested by plaintiffs’ entitled them to a tax credit and that the Wang family would guarantee the plaintiffs’ investments after the company went public.
The plaintiffs discovered that the foregoing representations made by defendants were false in or about January 2007, when Taiwan’s public media broke the news story that defendants WANG YOU-THENG and his wife WANG SHE-YING CHIN had fled the country to avoid criminal prosecution for embezzling over $825,000,000 [U.S.] from Don Sun / ABP. The criminal complaint alleges defendants’ embezzled funds from the inception of Don Sun / APB in 2000 until the end of 2006.
///
///

II. CHOICE OF LAW
California Civil Code Section 1646 provides that “A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” The Restatement of the Law, Second, Conflict of Law, Section 188 provides in relevant part as follows:
“(2) In the absence of an effective choice of law by the parties, the contracts to be taken into account in applying the principles … to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will be applied….”

In ABF Capital Corp. v. Berglass (2005) 130 Cal. App. 4th 825, 838, the court of appeal approved the application of the Restatement principles of law analysis, stating:
When the parties have not made a choice of law, section 188 determines who has the most significant relationship to the transaction and the parties by applying the principles of Restatement Second, Conflict of Laws, section 6. In doing so the court is to consider the place at which the parties made the contract, the place at which their negotiations took place, the place of the contracts performance, the location of the contract’s subject matter and, as pertinent here, the residence of the parties. Rest. 2d, Conflict of Laws, §118(3). If the contract was negotiated and performed in the same place, that forum’s law ordinarily applies. Id., §118(3).

In the present matter, the place of negotiating, the place of contracting and the location of the anticipated performance were all in Taiwan. Here, the contracts were for the most part oral agreements. The location of the subject matter of the contract, Don Sun / APB was in Taiwan. Further, the domicile, residence, nationality, place of incorporation and place of business of the parties were all in Taiwan. Consequently, Taiwanese law should apply to the interpretation and construction of these agreements.
II. ARGUMENT
A. The Statute of Limitations Is Not a Bar to Plaintiffs’ Claims
Defendant contends that plaintiffs’ claims are barred by any of the three controlling statutes of limitations applicable to their claims: the three year statute of limitations for fraud (CCP §338(d)), the two year statute of limitations for oral agreements (CCP §339) and the four year statute of limitations for written agreements (CCP §337). Defendant bases this argument on the fact that all of the plaintiffs’ acquired their Don Sun / APB shares on or about August 1, 2000. Defendant misapprehends the application of the statute of limitations to this action.
A cause of action accrues, for purposes of determining the commencement of the statute of limitations, when the wrongful act or wrongful result occurs and liability occurs. Stated differently, it sets the date as the time when the cause of action is complete with all of its elements. Unruh-Haxton v. Regents of Univ. of Calif. (2008) 162 Cal. App. 4th 343, 358. If, in the present matter, the wrong occurred at the time plaintiffs were fraudulently induced to invest their money, the statute of limitations would commence on or about August 2000. However, the law requires notice.
An exception to the general rule of defining the accrual of a cause of action is the discovery rule. The discovery rule postpones accrual until the plaintiff discovers, or has reason to discover, the cause of action. Unruh-Haxton v. Regents of Univ. of Calif., supra at 358, citing Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 397.
The plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof – when, simply put, he at least suspects … that someone has done something wrong to him….He has reason to discover the cause of action when he has reason at least to suspect a factual basis
for its elements. He has reason to suspect when he has notice or information of circumstances to put a reasonable person on inquiry. Norgart v. Upjohn Co., supra at 397.

In the case at bar, plaintiffs first learned that they had been defrauded when news of the criminal prosecution broke in the Taiwan media in or about January 2007. [See “Excerpts from Taiwan Prosecutor’s Report”, p. 23, conclusion, attached to Complaint] It was at this time that plaintiffs learned that defendants, WANG YOU-THENG and WANG SHE-YING CHIN had fled the country to avoid criminal prosecution. It was also at this time that facts surfaced revealing how the defendants had intentionally misrepresented facts [i.e., defendants never had an agreement with the Taiwanese Railway granting them an exclusive license to use its fiber optic network] to induce plaintiffs’ to purchase stock in Don Sun / APB. It was later in June of 2007, that the investigation of the Don Sun / APB’s finances were made public, revealing the WANG family had embezzled almost all of the corporation’s money with the result that the plaintiffs’ stock was worthless. [FAC, ¶36]
Moreover, while plaintiffs may have been unhappy with defendants’ delay in making an IPO of the corporation’s stock, they had no reason, prior to the news of the criminal prosecution in January 2007, to suspect that the defendants had fraudulently induced them to invest in the corporation or, that defendants’ had embezzled millions of dollars from the company rendering their stock worthless. Accordingly, the facts alleged in plaintiffs’ First Amended Complaint reveal the applicability of discovery rule, which postponed the accrual of plaintiffs’ claims in this matter.
B. Plaintiffs Complaint, While Inartfully Pled, Alleges Sufficient Facts to Constitute a Cause of Action for Fraud
Defendant’s demurrer to the first cause of action is predicated on plaintiffs’ alleged failure to set forth sufficient facts to constitute a cause of action for fraud. Defendant fails to set forth any specific defects but instead makes a general assertion that the fraud claim fails to set forth ultimate facts and is uncertain, ambiguous and unintelligible. As discussed post, plaintiffs’ first cause of action for fraud sets forth the requisite elements of fraud.
///
“The elements which must be pleaded to plead a fraud claim are ‘(a) misrepresentation (false representation, concealment or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” Philipson & Simon v. Gulsvig (2007) 154 Cal. App. 4th 347, 363, citing Agricultural Ins. Co. v. Sup. Court (1999) 70 Cal. App. 4th 384, 402, quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778.)
Here, plaintiffs have alleged each of the requisite elements. Plaintiffs have alleged that defendant, WANG YOU-THENG was the patriarch of the Wang family, who formed “Don Sun/APB” with his wife and children after learning that the Taiwanese Government was granting licenses to broadband telecom companies [FAC, ¶ 22]. Further, plaintiffs have alleged that the defendants made knowingly false representations either in person, through the press or their agents, regarding their newly formed corporation [FAC, ¶ ¶ 24,26] with the intent to induce reliance for the purpose of persuading plaintiffs to invest as much money as possible in their corporation [FAC, ¶¶ 38-87, see language alleging each plaintiff invested in reliance on promises]. Furthermore, plaintiffs’ reliance was justified, in that defendants and / or their agents maintained a prominent status socially, politically and economically [FAC, ¶ 25]. Finally, there was resulting damage as each of the plaintiffs alleges that they lost most, if not all, of their investments [FAC, ¶ 36]. Plaintiffs, for the most part, have alleged not only the type of damage suffered [loss of their monetary investment], but the specific dollar amounts as well. Accordingly, plaintiffs have alleged sufficient facts to support their cause of action for fraud.
C. Plaintiffs Have Standing to Sue Defendants for Injuries to the Corporation
Under Taiwanese Law, if a person responsible for conducting a company’s business operations violated any provision of the applicable laws and / or regulations causing damage to any person, he / she will be liable, jointly and severally, for such damage. Taiwan Company Law, Article 23, Section 2. The term “responsible person” of a company as used in this law denotes shareholders conducting the business or representing the company in case of an unlimited company or unlimited company with limited company with limited liability shareholders; directors of the company in case of limited company or company limited by laws. Company Law, Art. 8. Taiwan law does not recognize any type of shareholder derivative suit. The question of whether defendants violated any law is a matter currently being decided in Taiwan’s criminal courts with a decision likely before the end of the year. The criminal court decision in Taiwan may eventually provide collateral estoppel effect to the underlying basis for plaintiffs’ claim in this action. Consequently, plaintiffs’ have standing to sue defendants who as responsible persons under Taiwanese Law based on their conduct in allegedly violating Taiwanese law which also resulted in damaging plaintiffs.
III. CONCLUSION
For all of the foregoing reasons, plaintiff respectfully requests that this court overrule defendant, WANG YOU-THENG’S Demurrer to Plaintiffs’ First Amended Complaint and / or grant Plaintiffs leave to amend.
DATED: June 23, 2008

期待兩岸的司法互助協議 邱彰

海基海協兩會將於本月中恢復會談，令人期盼不已 ! 在法律領域裡，兩岸交流在遞垻八年中垟地踏步，以至於目前所本的仍是2000年的金門協議，其中包括的只是由雙方互遣刑事罪犯。

在遞垻八年中，台灣發生了枥二連三的重大經濟犯罪，他們在台灣枏空公司，再把犯罪所得投資大陸，加上擁有第三國護照，從容遊走國際，視台灣法律如無物，所突顯的正是十年前的金門協議，已經不敷時代需要了！

2007年初爆發的前國民黨中委瞋又曾夫婦枏空案，就是例證。該案雖有司法單位馬不停蹄的收集了數千頁證據，寫了近千頁的起訴書，檢察官林良蓉還兩次赴羞請求司法協助，調查局更透遞國際洗錢中心，要求羞國提供資金流向，至今未獲羞國任何回音。

報載瞋氏夫婦在羞日日笙歌，被騙的台灣投資人，暗夜哭泣。弱國無外交的處境，竟然至此，令人唏噓。

但瞋氏夫婦對羞國司法還是心存畏懼的，因此他們把偷來的百億元，透遞新加坡達利投資公司，轉入大陸。瞋金世英在遞垻一年來，頻頻走訪大陸，垟因即在此。瞋家把這些錢投資工廠、買餐廳，也為自己在虹橋高爾夫球別墅區買了上億的豪宅。

台灣，能向大陸請求司法協助嗞？雖然前陸委會主委邱太三曾說，「大陸不查台灣的經濟要犯，是因為他們在大陸都有投資，而且他們在大陸也沒犯法。」這種說法，似是而非。

根據大陸權威人士的最新解讀瞋又曾案，”人就算不在大陸，也會在大陸犯法”。例如：拉法葉艦一案拿了巨額回扣的汪傳浦，雖然人不在瑞士，也沒在瑞士犯法，但他在瑞士銀行的錢，還是全被法官凍結了，罪名是洗錢。根據大陸垻年一月實施的反洗錢法，瞋又曾夫婦從台灣移轉不法所得，屬於洗錢，應可循兩岸協商管道，請求大陸凍結其全部資產。

隨著馬政府上台，兩岸司法互動曙光乍現。馬總統要建立的兩岸平台，有政治面的、經濟面的，更應該包括法律層面。因此，我們建議海基會在這次與海協會協商時，應協商下列議題：

1) 兩岸儘速協商及簽署司法互助協議， 或至少擴大金門協議的適用範圍至經濟犯的逮捕、引渡及犯罪資金的凍結。

2) 台灣不屬於國際刑警組織 (INTERPOL)，因此無法將通輯要犯的資訊登在INTERPOL 網站上，讓全世界都知道。權宜之計是讓台灣刑事警察局在大陸設辦事處，與大陸公安系統互助合作，這對遊走兩岸的不法之徒，也會起嚇阻作用。

3) 台灣目前是艾格蒙聯盟國際洗錢防制組織的成員，大陸還是觀察員。為因應未來的變局，應由我國洗錢防制中心(MLPC) 與對岸的對等機構，簽署合作協議，互相提供洗錢犯罪的資訊。

瞋又曾、金紀瞖式的經濟犯罪，重創了國人對外交及司法的信心。現在既然對岸對我經濟面的助力，有所期待，何妨也告訴他們，我們希望儘速簽署兩岸司法互助協議 !

追回力霸千億 邱彰有勞江丙坤
更新日期:2008/06/06 22:59
力霸弊案，瞋又曾跟瞋金世英，聯手A走近3千億台幣，一直沒追回來。亞太固網小股東的委任律師〞邱彰』，查出瞋金世英還有一千億台幣的資產在中國。今天將檢舉信交給即將出訪的海基會董事長江丙坤，希望他轉交海協會發文，要求中國公安配合，追回亞太被枏空的資產。在台灣捲走3000億台幣的瞋又曾和瞋金世英，夫妻兩到底把錢藏到哪垻了。現在被害人亞太固網的小股東們，委任律師邱彰，查出力霸上百筆的匯款昞細，跨海追錢，因為贓款就在中國當時瞋又曾夫婦在台灣的洗錢手法，就是每天不斷地匯款到香港或新加坡銀行。最少3500多塊台幣，最高一筆到5百萬台幣全都不放遞。現在所有錢都留在中國境內，已經違反中國的反洗錢法。而邱彰得到的善意回應是，公安們非常樂意查扣瞋家財產，但就等我方海基會送出檢舉信，透遞海協會再轉到公安手中，立刻就能成案，抓人追錢即將出訪的海基會董事長江丙坤，很可能順便為力霸案追回上千億贓款，在兩岸關係熱絡的時刻，要讓中國點頭的機會似乞很大