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
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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
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN MATEO – UNLIMITED JURISDICTION
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15 DBP INVESTMENTS, a California General Lead Case No: CIV538897
Partnership (Consolidated with Case No. 19CIV07118)
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Plaintiff, KING PLAZA CENTER, LLC’S NOTICE
17 OF INTENT TO MOVE TO SET ASIDE
18 AND VACATE JUDGMENT
19 vs.
Trial Date: February 28, 2023
20 Complaint Filed: June 1, 2016
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KING PLAZA CENTER, LLC, a Delaware
22 Limited Liability Company, BUA-QUACH, an
individual, SOVAN LIEN, an individual,
23 DONG VUONG, an individual, THANH LAI,
and DOES 1 through 10
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25 Defendants.
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KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897
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1 To DBP Investments and its counsel,
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Attorney for DBP Investments Attorney for DBP Investments
3 Steven B. Piser John L. Fitzgerald
4 Law Offices of Steven B. Piser Law Offices of John L. Fitzgerald
1970 Broadway, Suite 600 44 Montgomery St., Suite 3580
5 Oakland, CA 94612 San Francisco, CA 94104
E: esperanza@stevenpiser.com E: john@jlfitzgeraldlaw.com
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7 PLEASE TAKE NOTICE THAT Defendant King Plaza Center, LLC hereby intends to
8 move to set aside and vacate the judgment entered in this action on April 18, 2023. Specifically,
9 Defendant King Plaza Center, LLC seeks to set aside and vacate the part of the judgment that
10 states “That since there is no provision in the agreement that precludes time restrictions, there is
11 no reason why through appropriate discussions the parties cannot work out an acceptable
12 agreement to accommodate both shoppers and bowlers” because it is “[i]ncorrect or erroneous
13 legal basis for the decision, not consistent with or not supported by the facts.” (See Code Civ.
14 Proc., § 663, subd. (1).)
15 This motion is based on the fact that Plaintiff DBP Investments and Defendant King
16 Plaza Center, LLC have different interpretations of the judgment and what it means. Plaintiff
17 DBP Investments believes that the judgment means that while the “REOA does not prohibit
18 agreed-upon time restrictions,” it does not “give King unfettered discretion to impose time
19 restricted parking.” In contrast, King believes that the judgment means that either party has the
20 right to put up time restrictions on its portion of the parking lot without needing the other party’s
21 agreement to do so.
22 King believes that its interpretation of the judgment is correct. However, in the event
23 that this Court’s judgment meant that the REOA required both parties to agree before time
24 restrictions could be placed on the parking, as DBP believes, then King hereby moves to vacate
25 and set aside the judgment on the basis that the judgment is “[i]ncorrect or erroneous legal basis
26 for the decision, not consistent with or not supported by the facts.” (See Code Civ. Proc., § 663,
27 subd. (1).) In its place, King moves for judgment to be entered to make clear that because the
28 REA does not prohibit time restrictions, that means either party has the right to put up time
KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897
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1 restrictions on its portion of the parking lot without needing the other party’s agreement to do
2 so.
3 The motion will be based upon this Notice; all pleadings, papers, trial court transcripts,
4 admitted trial evidence and records in this action; the minutes and orders of the Court; the
5 memorandum of law to be filed and served within the time permitted by CCP section 659a (see
6 CCP § 663a, subd. (d)), as well as any concomitantly-served and filed supporting pleadings,
7 including but not limited to, any declarations, request for judicial notice; any reply papers, and
8 upon such further argument to be made before, during or after the hearing as permitted by the
9 Court.
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11 TO THE COURT:
12 The hearing on the motion “shall have precedence over all other matters except criminal
13 cases, probate matters, and cases actually on trial, and it shall be the duty of the court to
14 determine the motion at the earliest possible moment.” (CCP § 660, subd. (b); cf. CCP § 663a,
15 subd. (d) [“[T]he hearing on the motion shall be set in the same manner as the hearing on a
16 motion for new trial under Section 660.”].)
17 “[T]he power of the court to rule on a motion to set aside and vacate a judgment shall
18 expire 75 days from the mailing of notice of entry of judgment by the clerk of the court pursuant
19 to Section 664.5, or 75 days after service upon the moving party by any party of written notice
20 of entry of the judgment, whichever is earlier, or if that notice has not been given, 75 days after
21 the filing of the first notice of intention to move to set aside and vacate the judgment. If that
22 motion is not determined within the 75-day period, or within that period as extended, the effect
23 shall be a denial of the motion without further order of the court. A motion to set aside and
24 vacate a judgment is not determined within the meaning of this section until an order ruling on
25 the motion is entered in the permanent minutes of the court, or signed by the judge and filed
26 with the clerk. The entry of an order to set aside and vacate the judgment in the permanent
27 minutes of the court shall constitute a determination of the motion even though that minute
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KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897
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1 order, as entered, expressly directs that a written order be prepared, signed, and filed.” (CCP §
2 663a, subd. (b).)
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5 GATES EISENHART DAWSON
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7 Dated: May 2, 2023 _______________________________
By: Steven D. McLellan
8 Attorneys for King Plaza Center, LLC
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KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897
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1 Case Name: DBP Investments v King Plaza Center, LLC, et al.
2 Court: San Mateo County Superior Court
Case No.: CIV538897
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PROOF OF SERVICE
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I am a citizen of the United States and a resident of Santa Clara County. I am over
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the age of eighteen years and not a party to the within action. My business address is 125
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South Market Street, Suite 1200, San Jose, California 95113-2288. On May 2, 2023, I
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served the following documents:
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9 KING PLAZA CENTER, LLC’S NOTICE OF INTENT TO MOVE TO
SET ASIDE AND VACATE JUDGMENT
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X BY ELECTRONIC MAIL to the following party(ies) at the electronic mail address(es) as indicated
11 and based on an agreement of the parties to accept service by electronic transmission.
12 Attorney for DBP Investments Attorney for DBP Investments
13 Steven B. Piser John L. Fitzgerald
Law Offices of Steven B. Piser Law Offices of John L. Fitzgerald
14 1970 Broadway, Suite 600 44 Montgomery St., Suite 3580
Oakland, CA 94612 San Francisco, CA 94104
15 E: esperanza@stevenpiser.com E: john@jlfitzgeraldlaw.com
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Attorney for Bua-Quach, Sovan Lien, Co-Counsel for King Plaza, LLC
17 Dong Vuong, Thanh Lai Janet E. Fogarty
James M. Barrett Janet Fogarty & Associates
18 Law Office of James M. Barrett P.O. Box 1579
100 W. El Camino Real, Suite 81 Millbrae, CA 94030
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Mountain View, CA 94040 E: jfogartylawfirm@yahoo.com
20 E: jb@jamesbarrettlaw.com
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I declare under penalty of perjury that the foregoing is true and correct, and that this
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declaration was executed in San Jose, California on May 2, 2023.
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________________________________
25 Cindy M. Rubi
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Proof of Service
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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 NOTICE 17 OF INTENT TO MOVE TO SET ASIDE 18 AND VACATE JUDGMENT 19 vs. Trial Date: February 28, 2023 20 Complaint Filed: June 1, 2016 21 KING PLAZA CENTER, LLC, a Delaware 22 Limited Liability Company, BUA-QUACH, an individual, SOVAN LIEN, an individual, 23 DONG VUONG, an individual, THANH LAI, and DOES 1 through 10 24 25 Defendants. 26 27 28 KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897 1 1 To DBP Investments and its counsel, 2 Attorney for DBP Investments Attorney for DBP Investments 3 Steven B. Piser John L. Fitzgerald 4 Law Offices of Steven B. Piser Law Offices of John L. Fitzgerald 1970 Broadway, Suite 600 44 Montgomery St., Suite 3580 5 Oakland, CA 94612 San Francisco, CA 94104 E: esperanza@stevenpiser.com E: john@jlfitzgeraldlaw.com 6 7 PLEASE TAKE NOTICE THAT Defendant King Plaza Center, LLC hereby intends to 8 move to set aside and vacate the judgment entered in this action on April 18, 2023. Specifically, 9 Defendant King Plaza Center, LLC seeks to set aside and vacate the part of the judgment that 10 states “That since there is no provision in the agreement that precludes time restrictions, there is 11 no reason why through appropriate discussions the parties cannot work out an acceptable 12 agreement to accommodate both shoppers and bowlers” because it is “[i]ncorrect or erroneous 13 legal basis for the decision, not consistent with or not supported by the facts.” (See Code Civ. 14 Proc., § 663, subd. (1).) 15 This motion is based on the fact that Plaintiff DBP Investments and Defendant King 16 Plaza Center, LLC have different interpretations of the judgment and what it means. Plaintiff 17 DBP Investments believes that the judgment means that while the “REOA does not prohibit 18 agreed-upon time restrictions,” it does not “give King unfettered discretion to impose time 19 restricted parking.” In contrast, King believes that the judgment means that either party has the 20 right to put up time restrictions on its portion of the parking lot without needing the other party’s 21 agreement to do so. 22 King believes that its interpretation of the judgment is correct. However, in the event 23 that this Court’s judgment meant that the REOA required both parties to agree before time 24 restrictions could be placed on the parking, as DBP believes, then King hereby moves to vacate 25 and set aside the judgment on the basis that the judgment is “[i]ncorrect or erroneous legal basis 26 for the decision, not consistent with or not supported by the facts.” (See Code Civ. Proc., § 663, 27 subd. (1).) In its place, King moves for judgment to be entered to make clear that because the 28 REA does not prohibit time restrictions, that means either party has the right to put up time KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897 2 1 restrictions on its portion of the parking lot without needing the other party’s agreement to do 2 so. 3 The motion will be based upon this Notice; all pleadings, papers, trial court transcripts, 4 admitted trial evidence and records in this action; the minutes and orders of the Court; the 5 memorandum of law to be filed and served within the time permitted by CCP section 659a (see 6 CCP § 663a, subd. (d)), as well as any concomitantly-served and filed supporting pleadings, 7 including but not limited to, any declarations, request for judicial notice; any reply papers, and 8 upon such further argument to be made before, during or after the hearing as permitted by the 9 Court. 10 11 TO THE COURT: 12 The hearing on the motion “shall have precedence over all other matters except criminal 13 cases, probate matters, and cases actually on trial, and it shall be the duty of the court to 14 determine the motion at the earliest possible moment.” (CCP § 660, subd. (b); cf. CCP § 663a, 15 subd. (d) [“[T]he hearing on the motion shall be set in the same manner as the hearing on a 16 motion for new trial under Section 660.”].) 17 “[T]he power of the court to rule on a motion to set aside and vacate a judgment shall 18 expire 75 days from the mailing of notice of entry of judgment by the clerk of the court pursuant 19 to Section 664.5, or 75 days after service upon the moving party by any party of written notice 20 of entry of the judgment, whichever is earlier, or if that notice has not been given, 75 days after 21 the filing of the first notice of intention to move to set aside and vacate the judgment. If that 22 motion is not determined within the 75-day period, or within that period as extended, the effect 23 shall be a denial of the motion without further order of the court. A motion to set aside and 24 vacate a judgment is not determined within the meaning of this section until an order ruling on 25 the motion is entered in the permanent minutes of the court, or signed by the judge and filed 26 with the clerk. The entry of an order to set aside and vacate the judgment in the permanent 27 minutes of the court shall constitute a determination of the motion even though that minute 28 KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897 3 1 order, as entered, expressly directs that a written order be prepared, signed, and filed.” (CCP § 2 663a, subd. (b).) 3 4 5 GATES EISENHART DAWSON 6 7 Dated: May 2, 2023 _______________________________ By: Steven D. McLellan 8 Attorneys for King Plaza Center, LLC 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KPC’s Not. Of Intent to Move to Set Aside and Vacate Judgment Lead Case No.: CIV538897 4 1 Case Name: DBP Investments v King Plaza Center, LLC, et al. 2 Court: San Mateo County Superior Court Case No.: CIV538897 3 PROOF OF SERVICE 4 I am a citizen of the United States and a resident of Santa Clara County. I am over 5 the age of eighteen years and not a party to the within action. My business address is 125 6 South Market Street, Suite 1200, San Jose, California 95113-2288. On May 2, 2023, I 7 served the following documents: 8 9 KING PLAZA CENTER, LLC’S NOTICE OF INTENT TO MOVE TO SET ASIDE AND VACATE JUDGMENT 10 X BY ELECTRONIC MAIL to the following party(ies) at the electronic mail address(es) as indicated 11 and based on an agreement of the parties to accept service by electronic transmission. 12 Attorney for DBP Investments Attorney for DBP Investments 13 Steven B. Piser John L. Fitzgerald Law Offices of Steven B. Piser Law Offices of John L. Fitzgerald 14 1970 Broadway, Suite 600 44 Montgomery St., Suite 3580 Oakland, CA 94612 San Francisco, CA 94104 15 E: esperanza@stevenpiser.com E: john@jlfitzgeraldlaw.com 16 Attorney for Bua-Quach, Sovan Lien, Co-Counsel for King Plaza, LLC 17 Dong Vuong, Thanh Lai Janet E. Fogarty James M. Barrett Janet Fogarty & Associates 18 Law Office of James M. Barrett P.O. Box 1579 100 W. El Camino Real, Suite 81 Millbrae, CA 94030 19 Mountain View, CA 94040 E: jfogartylawfirm@yahoo.com 20 E: jb@jamesbarrettlaw.com 21 I declare under penalty of perjury that the foregoing is true and correct, and that this 22 declaration was executed in San Jose, California on May 2, 2023. 23 24 ________________________________ 25 Cindy M. Rubi 26 27 28 Proof of Service 1