Preview
FRANK J. PERRETTA, ESQI, SBN 126947
_fjp@millermarlon.c0m
M. JONATHAN ROBB, JR., ESQ, SBN 290457
mjr@millermorton,c0m
MILLER, MORTON, CAILLAT
50 West San Fernando Street,
& NEVIS,
Suite 1300
LLP FILED
San Jose, California 95113-2434
Telephone: 408—292-1765 FEB - 5 2018
Facsimile: 408-436-8272
Attorneys for Defendants
Patrick Lin and Rosa Wang (erroneously responded as
Rosa Lin) in Case No.
OO\IO\
115CV287361
ANDY I.CHEN, ESQ, SBN 267886
andy. chen@andychcnlaw. com
THE LAW OFFICES OF ANDY l.CHEN
1o 2310 Homestead Road C-1 #429
Los Altos, California 94024-7300
11 Telephone: (408) 735-2436
12 Attorney for Plaintiff
Patrick Lin in 16CV303134
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF SANTA CLARA
15
16
SHERRY HSIEH and YEAO-NAN HSIEl-I, Case N0.: 115CV—287361
17
Plaintiffs, REPLY IN SUPPORT OF MOTION TO
18
CONSOLIDATE
vs.
19
Date: February 13, 2018
PATRICK LIN, ROSA LIN, JEMMY LIN, Time: 9:00 am.
2o MAY LIN, and DOES through 10, inclusive ra‘p’ ‘9‘
1
Dept:
Before:
9
Hon. Mary E. Arand , i
I: ‘
‘
21 Defendants.
Trial Date: None Set
LLP
22
1300
NEVIS,
Suite 23 PATRICK LIN, an individual, Case No. 16CV303134
81
95113
Street,
24
(408)292-1765
Plaintiff,
CAILLAT
CA
Jose,
Fernando
25 vs.
MORTON,
San
26 MIN CHOU,
Telephone:
San
an individual; and SHERRY
West HSIEH, an individual
MILLER. 27
50
Defendants.
28
REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE
I.
INTRODUCTION
The Hsieh Family] opposes consolidation on four factors, each of which is either
factually inaccurate or is not relevant to this analysis according to applicable law. As discussed
in their moving papers, the Lin Family2 discovered in these matters that Case No. 16CV303134,
or the “Defamation” case is the “flip side” of Case No. 115CV287361, or the “Breach of
m” case. Court must consolidate these two cases.
II.
STATEMENT OF FACTS
10 The facts in these matters have changed slightly since the motion to consolidate was
11 filed.
12 A. The Representations Of The Parties Has Changed
13 On or about January ll, 2018, Plaintiffs in Santa Clara County Superior Court Case No.
14 115CV287361, Sherry Hsieh and her husband Yeao-Nan Hsieh, substituted to appear in pro per.
15 As mentioned in the moving papers, that case principally involves Plaintiffs’ breach of contract
16 claims against Defendants Patrick Lin and his wife Rosa Wang.
17 In Santa Clara County Superior Court Case No. 16CV303134, Defendants Sherry Hsieh
18 and her mother Min Chou remain in pro per, defending against Patrick Lin’s allegations that
19 Defendants defamed him.
20 B, N 0 Party In Either Case Has Deposited Jurv Fees
21 As confirmed by this Coult during the continued January 9, 2018 trial setting conference,
LLP
22 no party in either case has deposited jury fees.
1300
NEVIS,
Suite 23 C, Both Matters Would Still Benefit from Consolidation
8- 292—1765
95113
Street,
24 Efforts to develop each case continues to be duplicative, For example, the Hsieh Family
CAILLAT
CA(408)
Jose,
Fernando
25 refuses to cooperate with discovery in both cases. Motions to compel continue to be presented
MORTON,
San
26
Telephone:
San
West
MILLER, 27 I
50
Collectively, Sherry l-lsieh, Yeao-Nan Hsieh and Min Chou are referred to herein as the
28 “Hsieh Family.”
2
Collectively, Patrick Lin and Rosa Wang are referred to as the “Lin Family.”
1
REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE
to this Court, as the parties develop their discovery independently for each case,
D. It Is Unclear What The Hsieh Family Filed With the Court
The Hsieh Family served the Lin Family with three oppositions, each of which bear both
case numbers but differ slightly: one signed January 8, 2018 (Served in the Defamation
Case); January 11, 2018 (Served in Breach of Contract Case); and January 12, 2018 (Served in
Defamation Case). (Declaration of Frank .I,Perretta and Declaration of Andy Chen, Exh. A, B
and C.) Based upon these oppositions, which are the only oppositions received by the Lin
Family, Min Chou has not opposed. The Lin Family is unclear what has been filed with the
Court. The Oppositions are referred to herein by their signature dates for the sake of simplicity.
10 III.
11 ARGUMENT
12 In opposing the motion to consolidate, as clearly articulated in the Lin Family’s moving
13 papers, The Hsieh Family must establish that a party would suffer prejudice to a substantial
14 right. (Carpenson Najarian 254 Cal.App.2d
v. (1967) 856, 862 [citing prior version of Code
15 Civ. Proc., 1048].) In the Oppositions, the Hsieh Family never mentioned
§ prejudice; much
16 less address whether any right of theirs was impacted,
17 Instead, the Hsieh Family collectively raised four meritless reasons to deny
18 consolidation: (1) there are different persons involved in the two cases, (2) the Breach of
19 Contract case is set for court trialwhere the defamation set for jury
case is trial,(3) the Hsieh
20 Family in the Breach of Contract case are represented by counsel where the Hsieh Family in the
21 defamation case are not; and breach of contract different
(4) a casc is from a defamation
22 case, As shown below, these statements are factually inaccurate, withdrawn, not
LLP
1300
relevant, or
NEVIS,
Suite 23 some combination of those three,
& 292-1765
95113
Street.
24 A. Both Matters Arc Set for a Bench Trial
CAILLAT
CA(408)
25 The Hsieh Family waived their right to a jury trial in both matters failing to deposit
Jose,
Fernando
by
MORTON,
San
26
Telephone:
San jury fees. So did the Lin Family. The time to filethese fees was years ago. No motion seeking
West
MILLER, 27 relief from that waiver has been filed in either matter. Accordingly, both matters are set for a
50
28 bench trial.
2
REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE
Even if one matter was set for a bench trial and the other for jury, consolidation is
available as that hypothetical does not articulate prejudice to a substantial right. Moreover, as
the Court pointed out at the January 9, 2018 trial setting conference, a jury is fully capable of
hearing a breach of contract action if a party seeks relief from their waiver,
\IQMAWN
B. “Different Case Types” Does Not Provide Any Facts or Law to Deny
Consolidation
In their Oppositions dated January 1 1 and 12, 2018, the Hsieh Family referred to
“Different Case Types” and referenced that one case was a ‘iBreach contracts” while the other
was a “Defamation.” (See, e.g., January 12, 2018 Opposition at 2:16—20.) The Lin Family is
10 unclear what is meant to be communicated. In different of causes
any case, elements of action
11 are not relevant to opposing consolidation. Rather, as clearly articulated in the Lin Family’s
12 moving papers, courts look at whether “common issues” exist. (Weil & Brown, Cal. Practice
13 Guide: Civil Procedure Before Trial (The Rutter Group 2017) (“Rutter”) $112:359, p.12 (l)—67.)
14 Here, as more fully addressed in the Lin Family’s moving papers, common issues of fact
15 exist as Hsieh Family’s defamatory statements are connected to their allegations that Patrick Lin
16 breached a contract. Moreover, overlapping issues of law exist to common
as procedural and
17 evidentiary legal questions between the two cases.
18 C. The Parties, or Their Counsel, in the Two Cases Are Not Relevant
19 As the Lin Family raised in their moving papers, consolidation is appropriate even if the
20 two matters involve slightly different parties. (Jud Whitehead Heater Co. Obler
v. (1952) 111
21 Ca1.App.2d 861, 867 [cited by Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial
22 (The Rutter Group 2017) 12:359, p.12 (I)-67].) There is no dispute that Patrick Lin and
LLP
1300
1] Sherry
NEVIS.
23 Hsieh are common parties in the two cases, or that these two disputes principally
Suite
are family
& 292-1765
95113
Street.
24 disputes between the Hsieh Family (including Min Chou) and the Lin Family.
CAILLAT
CA(408)
Fernando
Jose.
25 D. Consolidation Would Benefit These Two Actions
MORTON.
San
26
Teiephone:
San As reviewed in further detail in the Lin Family’s moving papers, consolidation would
West
MILLER. 27 benefit these two actions. Discovery would be more efficient. Trial would be more
50
28 efficient. Consolidation will reduce the risk of inconsistent judgments, and the ease of
3
REPLY TO OPPOSITION 'l‘O MOTION TO CONSOLIDATE
collection of judgments would be increased. No party would be prejudiced.
IV.
CONCLUSION
The Hsieh Family advances no authority in fact or law that consolidation or should
may
be denied. These two cases running in parallel wasting
are the resources of the parties and
Court. The two matters should be consolidated for all purposes, including trial.
Respectfully submitted,
Dated: February 2, 2018 MILLER, MORTON, CAILLAT & NEVIS, LLP
10
FRANK J. PERRETTA
11
M. JONATHAN ROBB, JR.
Attorneys for Defendants
12
Patrick Lin and Rosa Wang (erroneously responded
as Rosa Lin) in Case No. 115CV287361
13
14
THE LAW OFFICES OF ANDY I.CHEN
15
16
By:
17
ANDY CHEN
18
Attorney for Defendant
Patrick Lin in Case No. I6CV3 03134
19
20
21
LLP
22
1300
NEVIS‘
Suite 23
8i 29241765
95113
Street.
24
CAILLAT
CA(408)
Jose.
Fernando
25
MORTON,
San
26
Telephone:
San
West
MILLER, 27
50
28
4
REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE
Preview
FRANK J. PERRETTA, ESQI, SBN 126947 _fjp@millermarlon.c0m M. JONATHAN ROBB, JR., ESQ, SBN 290457 mjr@millermorton,c0m MILLER, MORTON, CAILLAT 50 West San Fernando Street, & NEVIS, Suite 1300 LLP FILED San Jose, California 95113-2434 Telephone: 408—292-1765 FEB - 5 2018 Facsimile: 408-436-8272 Attorneys for Defendants Patrick Lin and Rosa Wang (erroneously responded as Rosa Lin) in Case No. OO\IO\ 115CV287361 ANDY I.CHEN, ESQ, SBN 267886 andy. chen@andychcnlaw. com THE LAW OFFICES OF ANDY l.CHEN 1o 2310 Homestead Road C-1 #429 Los Altos, California 94024-7300 11 Telephone: (408) 735-2436 12 Attorney for Plaintiff Patrick Lin in 16CV303134 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SANTA CLARA 15 16 SHERRY HSIEH and YEAO-NAN HSIEl-I, Case N0.: 115CV—287361 17 Plaintiffs, REPLY IN SUPPORT OF MOTION TO 18 CONSOLIDATE vs. 19 Date: February 13, 2018 PATRICK LIN, ROSA LIN, JEMMY LIN, Time: 9:00 am. 2o MAY LIN, and DOES through 10, inclusive ra‘p’ ‘9‘ 1 Dept: Before: 9 Hon. Mary E. Arand , i I: ‘ ‘ 21 Defendants. Trial Date: None Set LLP 22 1300 NEVIS, Suite 23 PATRICK LIN, an individual, Case No. 16CV303134 81 95113 Street, 24 (408)292-1765 Plaintiff, CAILLAT CA Jose, Fernando 25 vs. MORTON, San 26 MIN CHOU, Telephone: San an individual; and SHERRY West HSIEH, an individual MILLER. 27 50 Defendants. 28 REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE I. INTRODUCTION The Hsieh Family] opposes consolidation on four factors, each of which is either factually inaccurate or is not relevant to this analysis according to applicable law. As discussed in their moving papers, the Lin Family2 discovered in these matters that Case No. 16CV303134, or the “Defamation” case is the “flip side” of Case No. 115CV287361, or the “Breach of m” case. Court must consolidate these two cases. II. STATEMENT OF FACTS 10 The facts in these matters have changed slightly since the motion to consolidate was 11 filed. 12 A. The Representations Of The Parties Has Changed 13 On or about January ll, 2018, Plaintiffs in Santa Clara County Superior Court Case No. 14 115CV287361, Sherry Hsieh and her husband Yeao-Nan Hsieh, substituted to appear in pro per. 15 As mentioned in the moving papers, that case principally involves Plaintiffs’ breach of contract 16 claims against Defendants Patrick Lin and his wife Rosa Wang. 17 In Santa Clara County Superior Court Case No. 16CV303134, Defendants Sherry Hsieh 18 and her mother Min Chou remain in pro per, defending against Patrick Lin’s allegations that 19 Defendants defamed him. 20 B, N 0 Party In Either Case Has Deposited Jurv Fees 21 As confirmed by this Coult during the continued January 9, 2018 trial setting conference, LLP 22 no party in either case has deposited jury fees. 1300 NEVIS, Suite 23 C, Both Matters Would Still Benefit from Consolidation 8- 292—1765 95113 Street, 24 Efforts to develop each case continues to be duplicative, For example, the Hsieh Family CAILLAT CA(408) Jose, Fernando 25 refuses to cooperate with discovery in both cases. Motions to compel continue to be presented MORTON, San 26 Telephone: San West MILLER, 27 I 50 Collectively, Sherry l-lsieh, Yeao-Nan Hsieh and Min Chou are referred to herein as the 28 “Hsieh Family.” 2 Collectively, Patrick Lin and Rosa Wang are referred to as the “Lin Family.” 1 REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE to this Court, as the parties develop their discovery independently for each case, D. It Is Unclear What The Hsieh Family Filed With the Court The Hsieh Family served the Lin Family with three oppositions, each of which bear both case numbers but differ slightly: one signed January 8, 2018 (Served in the Defamation Case); January 11, 2018 (Served in Breach of Contract Case); and January 12, 2018 (Served in Defamation Case). (Declaration of Frank .I,Perretta and Declaration of Andy Chen, Exh. A, B and C.) Based upon these oppositions, which are the only oppositions received by the Lin Family, Min Chou has not opposed. The Lin Family is unclear what has been filed with the Court. The Oppositions are referred to herein by their signature dates for the sake of simplicity. 10 III. 11 ARGUMENT 12 In opposing the motion to consolidate, as clearly articulated in the Lin Family’s moving 13 papers, The Hsieh Family must establish that a party would suffer prejudice to a substantial 14 right. (Carpenson Najarian 254 Cal.App.2d v. (1967) 856, 862 [citing prior version of Code 15 Civ. Proc., 1048].) In the Oppositions, the Hsieh Family never mentioned § prejudice; much 16 less address whether any right of theirs was impacted, 17 Instead, the Hsieh Family collectively raised four meritless reasons to deny 18 consolidation: (1) there are different persons involved in the two cases, (2) the Breach of 19 Contract case is set for court trialwhere the defamation set for jury case is trial,(3) the Hsieh 20 Family in the Breach of Contract case are represented by counsel where the Hsieh Family in the 21 defamation case are not; and breach of contract different (4) a casc is from a defamation 22 case, As shown below, these statements are factually inaccurate, withdrawn, not LLP 1300 relevant, or NEVIS, Suite 23 some combination of those three, & 292-1765 95113 Street. 24 A. Both Matters Arc Set for a Bench Trial CAILLAT CA(408) 25 The Hsieh Family waived their right to a jury trial in both matters failing to deposit Jose, Fernando by MORTON, San 26 Telephone: San jury fees. So did the Lin Family. The time to filethese fees was years ago. No motion seeking West MILLER, 27 relief from that waiver has been filed in either matter. Accordingly, both matters are set for a 50 28 bench trial. 2 REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE Even if one matter was set for a bench trial and the other for jury, consolidation is available as that hypothetical does not articulate prejudice to a substantial right. Moreover, as the Court pointed out at the January 9, 2018 trial setting conference, a jury is fully capable of hearing a breach of contract action if a party seeks relief from their waiver, \IQMAWN B. “Different Case Types” Does Not Provide Any Facts or Law to Deny Consolidation In their Oppositions dated January 1 1 and 12, 2018, the Hsieh Family referred to “Different Case Types” and referenced that one case was a ‘iBreach contracts” while the other was a “Defamation.” (See, e.g., January 12, 2018 Opposition at 2:16—20.) The Lin Family is 10 unclear what is meant to be communicated. In different of causes any case, elements of action 11 are not relevant to opposing consolidation. Rather, as clearly articulated in the Lin Family’s 12 moving papers, courts look at whether “common issues” exist. (Weil & Brown, Cal. Practice 13 Guide: Civil Procedure Before Trial (The Rutter Group 2017) (“Rutter”) $112:359, p.12 (l)—67.) 14 Here, as more fully addressed in the Lin Family’s moving papers, common issues of fact 15 exist as Hsieh Family’s defamatory statements are connected to their allegations that Patrick Lin 16 breached a contract. Moreover, overlapping issues of law exist to common as procedural and 17 evidentiary legal questions between the two cases. 18 C. The Parties, or Their Counsel, in the Two Cases Are Not Relevant 19 As the Lin Family raised in their moving papers, consolidation is appropriate even if the 20 two matters involve slightly different parties. (Jud Whitehead Heater Co. Obler v. (1952) 111 21 Ca1.App.2d 861, 867 [cited by Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 22 (The Rutter Group 2017) 12:359, p.12 (I)-67].) There is no dispute that Patrick Lin and LLP 1300 1] Sherry NEVIS. 23 Hsieh are common parties in the two cases, or that these two disputes principally Suite are family & 292-1765 95113 Street. 24 disputes between the Hsieh Family (including Min Chou) and the Lin Family. CAILLAT CA(408) Fernando Jose. 25 D. Consolidation Would Benefit These Two Actions MORTON. San 26 Teiephone: San As reviewed in further detail in the Lin Family’s moving papers, consolidation would West MILLER. 27 benefit these two actions. Discovery would be more efficient. Trial would be more 50 28 efficient. Consolidation will reduce the risk of inconsistent judgments, and the ease of 3 REPLY TO OPPOSITION 'l‘O MOTION TO CONSOLIDATE collection of judgments would be increased. No party would be prejudiced. IV. CONCLUSION The Hsieh Family advances no authority in fact or law that consolidation or should may be denied. These two cases running in parallel wasting are the resources of the parties and Court. The two matters should be consolidated for all purposes, including trial. Respectfully submitted, Dated: February 2, 2018 MILLER, MORTON, CAILLAT & NEVIS, LLP 10 FRANK J. PERRETTA 11 M. JONATHAN ROBB, JR. Attorneys for Defendants 12 Patrick Lin and Rosa Wang (erroneously responded as Rosa Lin) in Case No. 115CV287361 13 14 THE LAW OFFICES OF ANDY I.CHEN 15 16 By: 17 ANDY CHEN 18 Attorney for Defendant Patrick Lin in Case No. I6CV3 03134 19 20 21 LLP 22 1300 NEVIS‘ Suite 23 8i 29241765 95113 Street. 24 CAILLAT CA(408) Jose. Fernando 25 MORTON, San 26 Telephone: San West MILLER, 27 50 28 4 REPLY TO OPPOSITION TO MOTION TO CONSOLIDATE