Preview
1 GATES EISENHART DAWSON
Steven D. McLellan (SBN 311395)
2 James L. Dawson (SBN 73521)
Marc A. Eisenhart (SBN 188518)
3 Claire A. Melehani (SBN 324763)
125 South Market Street, Suite 1200
4 San Jose, CA 95113-2288
Telephone: (408) 288-8100
5 Fax: (408) 288-9409
E-mail: sdm@gedlaw.com; jld@gedlaw.com; mae@gedlaw.com; cam@gedlaw.com
6
Janet Fogarty & Associates
7 Janet E. Fogarty (SBN 157460)
PO Box 1579
8 Millbrae, CA 94030
Telephone: (650) 652-5601
9 Email: jfogartylawfirm@yahoo.com
10 Attorneys for: King Plaza Center, LLC
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SAN MATEO – UNLIMITED JURISDICTION
14
15 DBP INVESTMENTS, a California General Lead Case No: CIV538897
Partnership (Consolidated with Case No. 19CIV07118)
16
Plaintiff, KING PLAZA CENTER, LLC’S
17 REQUEST FOR JUDICIAL NOTICE
18
19 vs. Date: February 6, 2023
Time: 2:00 PM
20 Dept: 21
Judge: Hon. Robert D. Foiles
21
KING PLAZA CENTER, LLC, a Delaware
22 Limited Liability Company, BUA-QUACH, an Trial Date: February 6, 2023
individual, SOVAN LIEN, an individual, Complaint Filed: June 1, 2016
23 DONG VUONG, an individual, THANH LAI,
and DOES 1 through 10
24
25 Defendants.
26
27
28
King Plaza Center, LLC’s RJN Lead Case No.: CIV538897
1
1 Pursuant to Evidence Code section 452, King Plaza Center, LLC requests that thic Court
2 take judicial notice of the following:
3 1. The answer to complaint, filed by King Plaza Center, LLC in this action on August
4 1, 2016, a copy of which is attached as Exhibit A. (See Evid. Code § 452, subd. (d).)
5 2. The City of Daly City Minutes – Regular Meeting – City Council, dated November
6 14, 2022, a copy of which is attached as Exhibit B. (See Evid. Code § 452, subd. (b),
7 (c) & (h); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 9 fn.5 [taking judicial notice
8 of council meeting minutes].)
9
10 GATES EISENHART DAWSON
11
12 Dated: January 27, 2023 _______________________________
By: Steven D. McLellan
13 Attorneys for King Plaza Center, LLC
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15
16
17
18
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23
24
25
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27
28
King Plaza Center, LLC’s RJN Lead Case No.: CIV538897
2
EXHIBIT A
.,.
1 RONALD R. ROSSI (SBN 43067)
MADOLYN D. ORR (SBN 280608) FILED
2 ROSSI, HAMERSLOUGH, REISCHL & CHUCK SAN MATEO COUNTY
1960 The Alameda, Suite 200
3 San Jose, CA 95126-1493 AUG - l 2016
Tel: (408) 261-4252
4 Fax: (408) 261-4292 Olelfk m-n!l'DA'Zl
5 Attorneys for Defendant By~~~~~=----
KING PLAZA CENTER, LLC
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF SAN MATEO
8 m
DBP INVESTMENTS, a California General Case No.: CIV538897 -<
9 Partnership, -n
ANSWER TO COMPLAINT )>
10 Plaintiff,
Action Filed: June 1, 2016
><
11 vs. Trial Date: TBD
12 KING PLAZA CENTER, LLC, a Delaware ·--·· ·-
Limited Liability Company [erroneously sued as ( CIV538897
' ARDU
13 KING PLAZA CENTER, LLC, a California Answer/ Response/ Denial -
Unlimited
limited liability company], and DOES 1 through 132895
14 10,
15 Defendants. Ill lllllllllllllllllllllllllllllll Ill Ill
16
Defendant KING PLAZA CENTER, LLC generally denies each and every allegation of
17
Plaintifrs Complaint.
18
Defendant states the following separate affirmative defenses to Plaintiffs Complaint:
19
AFFIRMATIVE DEFENSES
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1. Defendant denies each and every allegation of the Complaint and in particular
21
denies that Plaintiff was damaged in the sums alleged or in any sum as a result of any act or
22
omission of Defendant.
23
2. The Complaint and each cause of action fail to allege facts sufficient to constitute
24
a cause of action.
25
Ruu.i.H.wthlnoFJ.
· 3. The Complaint and each cause of action are barred by the doctrine of estoppel.
Rnuhl.t.Uwd: 26
1•x.nThc/\hrrit\U
s.i1c:111
S.i~jp,,c.(.'A
4. The Complaint and each cause of action are barred by the application of the
'J$1~1A9.l
27
t-"lk)Y,.t""'?)?
r,, tm, 21,,..,~2 doctrine of waiver to the acts, conduct, and representations by Plaintiff.
28
ANSWER TO COMPLAINT
;,,
1 5. Plaintiff is guilty of unclean hands, which bars its right of recovery against
2 Defendant.
3 6. The Complaint and each cause of action are barred by the doctrine of laches.
4 7. The Complaint and each cause of action are barred by application of the doctrine
5 of unjust enrichment to the acts, conduct, and representations by Plaintiff.
6 8. The Complaint and each cause of action are barred by application of the doctrine
7 of assumption of risk to the acts, conduct, and representations by Plaintiff.
8 9. Plaintiff failed to mitigate its damages, if any, and any recovery awarded should
9 be reduced by the amount of damages that could reasonably have been avoided by such actions.
10 I 0. Any right of recovery against Defendant, which Defendant denies, is barred, as
11 Plaintiff acted in pari delicto.
12 11. The Complaint and each cause of action are barred by § 33 7 et seq. of the Code o
13 Civil Procedure.
14 12. The Complaint and each cause of action are barred by the application of the
15 doctrine of uncertainty and indefiniteness of the agreement.
16 13. The Complaint and each cause of action are barred by the failure of certain
17 contingencies or conditions precedent.
18 14. Plaintiff has directed, ordered, approved, and ratified Defendant's conduct, and
19 Plaintiff is, therefore, estopped from asserting any claims based thereon.
20 15. If any wrongful conduct was engaged in by other defendants, cross-defendants, or
21 third parties, trus answering Defendant is informed and believes and thereupon alleges that
22 Plaintiff directly or indirectly acted in concert with other defendants, cross-defendants, or third
23 parties or knowingly ratified or approved such conduct and is therefore precluded from any
24 recovery under the doctrine of in pari delicto.
25 16. The Complaint is barred by the statute of limitations, including but not limited to
~ . lbma,~,ti.
~l.t.Chuc~ 26
J9('1111 ~ l\lcmo.b
Code of Civil Procedure §339(1).
Suit.e?f)l
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9Sllf..U?)
27
(1-ll&}!f•H?S::
fl' '"'18) ~f.14292
28
ANSWER TO COMPLAINT 2
,_,,.
17. At all relevant times, this answering Defendant acted independently and not in
2 association or concert with or as agent or servant of any other defendant, including defendants
3 sued herein under the fictitious name or their employees or agents.
4 18. By the terms of the contract, as alleged in the Complaint, this answering
5 Defendant is not responsible for the conditions, covenants, and promises thereunder.
6 19. Defendant alleges that Plaintiff violated the material covenants and conditions of
7 the agreement, including the covenant of good faith and fair dealing, thereby terminating and
8 extinguishing the duties allegedly owed or reducing or rebating the amount of damage to which
9 Plaintiff is entitled, if any.
10 20. This answering Defendant is informed and believes, and upon such information
11 and belief alleges, that Plaintiffs Complaint and each alleged cause of action therein arc
12 absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice ol
13 the alleged breached of contract for the wrongful conduct as alleged in the Complaint.
14 WHEREFORE, Defendant prays that Plairitifftake nothing by its Complaint; that
15 Defendant be awarded costs of suit including reasonable attorney's fees; and for such other relief
16 as the Court deems just and proper.
17 Dated: Julv 28. 2016 ROSSI. 1-IAMERSLOUGH. REISCHL & CHUCK
18
19 BY:~l,
20 MADOL YN D. ORR
Attorneys for Defendant
21 KING PLAZA CENTER. LLC
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Preview
1 GATES EISENHART DAWSON Steven D. McLellan (SBN 311395) 2 James L. Dawson (SBN 73521) Marc A. Eisenhart (SBN 188518) 3 Claire A. Melehani (SBN 324763) 125 South Market Street, Suite 1200 4 San Jose, CA 95113-2288 Telephone: (408) 288-8100 5 Fax: (408) 288-9409 E-mail: sdm@gedlaw.com; jld@gedlaw.com; mae@gedlaw.com; cam@gedlaw.com 6 Janet Fogarty & Associates 7 Janet E. Fogarty (SBN 157460) PO Box 1579 8 Millbrae, CA 94030 Telephone: (650) 652-5601 9 Email: jfogartylawfirm@yahoo.com 10 Attorneys for: King Plaza Center, LLC 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SAN MATEO – UNLIMITED JURISDICTION 14 15 DBP INVESTMENTS, a California General Lead Case No: CIV538897 Partnership (Consolidated with Case No. 19CIV07118) 16 Plaintiff, KING PLAZA CENTER, LLC’S 17 REQUEST FOR JUDICIAL NOTICE 18 19 vs. Date: February 6, 2023 Time: 2:00 PM 20 Dept: 21 Judge: Hon. Robert D. Foiles 21 KING PLAZA CENTER, LLC, a Delaware 22 Limited Liability Company, BUA-QUACH, an Trial Date: February 6, 2023 individual, SOVAN LIEN, an individual, Complaint Filed: June 1, 2016 23 DONG VUONG, an individual, THANH LAI, and DOES 1 through 10 24 25 Defendants. 26 27 28 King Plaza Center, LLC’s RJN Lead Case No.: CIV538897 1 1 Pursuant to Evidence Code section 452, King Plaza Center, LLC requests that thic Court 2 take judicial notice of the following: 3 1. The answer to complaint, filed by King Plaza Center, LLC in this action on August 4 1, 2016, a copy of which is attached as Exhibit A. (See Evid. Code § 452, subd. (d).) 5 2. The City of Daly City Minutes – Regular Meeting – City Council, dated November 6 14, 2022, a copy of which is attached as Exhibit B. (See Evid. Code § 452, subd. (b), 7 (c) & (h); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 9 fn.5 [taking judicial notice 8 of council meeting minutes].) 9 10 GATES EISENHART DAWSON 11 12 Dated: January 27, 2023 _______________________________ By: Steven D. McLellan 13 Attorneys for King Plaza Center, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 King Plaza Center, LLC’s RJN Lead Case No.: CIV538897 2 EXHIBIT A .,. 1 RONALD R. ROSSI (SBN 43067) MADOLYN D. ORR (SBN 280608) FILED 2 ROSSI, HAMERSLOUGH, REISCHL & CHUCK SAN MATEO COUNTY 1960 The Alameda, Suite 200 3 San Jose, CA 95126-1493 AUG - l 2016 Tel: (408) 261-4252 4 Fax: (408) 261-4292 Olelfk m-n!l'DA'Zl 5 Attorneys for Defendant By~~~~~=---- KING PLAZA CENTER, LLC 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SAN MATEO 8 m DBP INVESTMENTS, a California General Case No.: CIV538897 -< 9 Partnership, -n ANSWER TO COMPLAINT )> 10 Plaintiff, Action Filed: June 1, 2016 >< 11 vs. Trial Date: TBD 12 KING PLAZA CENTER, LLC, a Delaware ·--·· ·- Limited Liability Company [erroneously sued as ( CIV538897 ' ARDU 13 KING PLAZA CENTER, LLC, a California Answer/ Response/ Denial - Unlimited limited liability company], and DOES 1 through 132895 14 10, 15 Defendants. Ill lllllllllllllllllllllllllllllll Ill Ill 16 Defendant KING PLAZA CENTER, LLC generally denies each and every allegation of 17 Plaintifrs Complaint. 18 Defendant states the following separate affirmative defenses to Plaintiffs Complaint: 19 AFFIRMATIVE DEFENSES 20 1. Defendant denies each and every allegation of the Complaint and in particular 21 denies that Plaintiff was damaged in the sums alleged or in any sum as a result of any act or 22 omission of Defendant. 23 2. The Complaint and each cause of action fail to allege facts sufficient to constitute 24 a cause of action. 25 Ruu.i.H.wthlnoFJ. · 3. The Complaint and each cause of action are barred by the doctrine of estoppel. Rnuhl.t.Uwd: 26 1•x.nThc/\hrrit\U s.i1c:111 S.i~jp,,c.(.'A 4. The Complaint and each cause of action are barred by the application of the 'J$1~1A9.l 27 t-"lk)Y,.t""'?)? r,, tm, 21,,..,~2 doctrine of waiver to the acts, conduct, and representations by Plaintiff. 28 ANSWER TO COMPLAINT ;,, 1 5. Plaintiff is guilty of unclean hands, which bars its right of recovery against 2 Defendant. 3 6. The Complaint and each cause of action are barred by the doctrine of laches. 4 7. The Complaint and each cause of action are barred by application of the doctrine 5 of unjust enrichment to the acts, conduct, and representations by Plaintiff. 6 8. The Complaint and each cause of action are barred by application of the doctrine 7 of assumption of risk to the acts, conduct, and representations by Plaintiff. 8 9. Plaintiff failed to mitigate its damages, if any, and any recovery awarded should 9 be reduced by the amount of damages that could reasonably have been avoided by such actions. 10 I 0. Any right of recovery against Defendant, which Defendant denies, is barred, as 11 Plaintiff acted in pari delicto. 12 11. The Complaint and each cause of action are barred by § 33 7 et seq. of the Code o 13 Civil Procedure. 14 12. The Complaint and each cause of action are barred by the application of the 15 doctrine of uncertainty and indefiniteness of the agreement. 16 13. The Complaint and each cause of action are barred by the failure of certain 17 contingencies or conditions precedent. 18 14. Plaintiff has directed, ordered, approved, and ratified Defendant's conduct, and 19 Plaintiff is, therefore, estopped from asserting any claims based thereon. 20 15. If any wrongful conduct was engaged in by other defendants, cross-defendants, or 21 third parties, trus answering Defendant is informed and believes and thereupon alleges that 22 Plaintiff directly or indirectly acted in concert with other defendants, cross-defendants, or third 23 parties or knowingly ratified or approved such conduct and is therefore precluded from any 24 recovery under the doctrine of in pari delicto. 25 16. The Complaint is barred by the statute of limitations, including but not limited to ~ . lbma,~,ti. ~l.t.Chuc~ 26 J9('1111 ~ l\lcmo.b Code of Civil Procedure §339(1). Suit.e?f)l S...:..\-.CA 9Sllf..U?) 27 (1-ll&}!f•H?S:: fl' '"'18) ~f.14292 28 ANSWER TO COMPLAINT 2 ,_,,. 17. At all relevant times, this answering Defendant acted independently and not in 2 association or concert with or as agent or servant of any other defendant, including defendants 3 sued herein under the fictitious name or their employees or agents. 4 18. By the terms of the contract, as alleged in the Complaint, this answering 5 Defendant is not responsible for the conditions, covenants, and promises thereunder. 6 19. Defendant alleges that Plaintiff violated the material covenants and conditions of 7 the agreement, including the covenant of good faith and fair dealing, thereby terminating and 8 extinguishing the duties allegedly owed or reducing or rebating the amount of damage to which 9 Plaintiff is entitled, if any. 10 20. This answering Defendant is informed and believes, and upon such information 11 and belief alleges, that Plaintiffs Complaint and each alleged cause of action therein arc 12 absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice ol 13 the alleged breached of contract for the wrongful conduct as alleged in the Complaint. 14 WHEREFORE, Defendant prays that Plairitifftake nothing by its Complaint; that 15 Defendant be awarded costs of suit including reasonable attorney's fees; and for such other relief 16 as the Court deems just and proper. 17 Dated: Julv 28. 2016 ROSSI. 1-IAMERSLOUGH. REISCHL & CHUCK 18 19 BY:~l, 20 MADOL YN D. ORR Attorneys for Defendant 21 KING PLAZA CENTER. LLC 22 23 24 25 R, .. ,1. P.i~,,,•1'\1,:~ . !~;;~~\\~:~:~~ 11,- ~ .. ;!~• 26 Jc>..:: . t ,\ ~ ; I\ 27 1;~,;li :.!~I!~~~.! J: