Motion,Ex Parte: ANTHONY FRANCHI, Derivately on behalf of UBIQUITI NETWORKS, INC. vs ROBERT PERA

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                                Case Number: 18-CIV-01255

                                                          SUPERIOR COURT OF SAN MATEO COUNTY
                                                      400 County Center                         1050 Mission Road
                                                   Redwood City, CA 94063                 South San Francisco, CA 94080
                                                                     www.sanmateocourt.org

                                                                   Minute Order
              ANTHONY FRANCHI, Derivately on behalf of UBIQUITI NETWORKS, INC.                                        18-CIV-01255
              vs. ROBERT J. PERA, et. al.
                                                                                                              11/30/2018 9:00 AM
                                                                                                               Motion to Intervene
                                                                                                              Hearing Result:    Held

              Judicial Officer: Swope, V. Raymond                       Location: Courtroom 8A
              Courtroom Clerk: Rebecca Huerta                           Courtroom Reporter:      Geraldine Vandeveld


              Parties Present


              Exhibits


              Minutes
              Journals
               - At 9:19 a.m. - Court convenes.

               No appearance by any parties herein or their counsel of record.
               Tentative ruling adopted and becomes order:

               Intervenor Richard Gericke's Motion for Leave to Intervene is DENIED, WITHOUT PREJUDICE. Mr. Gericke
               failed to provide a copy of the proposed complaint in intervention as specifically required by statute.

               A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The
               petition shall include a copy of the proposed complaint in intervention or answer in intervention and set
               forth the grounds upon which intervention rests.

               (Code Civ. Proc.   387, subd. (c) (emphasis added).) Mr. Gericke even cited to this requirement in his
               moving papers. (MPA ISO Motion, filed Jun. 20, 2018, p. 15:6-13.)

               In reply, Mr. Gericke's reliance on Federal Rules of Civil Procedure, rule 24 ("FRCP") is not availing given
               the specific statutory requirement per Code of Civil Procedure section 387.          (Reply ISO Motion, filed Oct.
               19, 2018, p. 12:12-16.) Furthermore, Mr. Gericke provides no authority supporting his position that the
               FRCP overrides a California statutory requirement. "A point which is merely suggested by a party's
               counsel, with no supporting argument or authority, is deemed to be without foundation and requires no
               discussion." (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th
               27, 35, superseded by statute on other grounds in Union Bank v. Sup.Ct. (1995) 31 Cal.App.4th 573, 583.)

               Mr. Gericke's request for a stay of 60 days in his reply is improper given it was not sought in his Notice of
               Motion.   (Code Civ. Proc.   1010. See Reply, filed Oct. 10, 2018, p. 5:2-4, 5:22-24, 7:15-16, 9:4-5.) "The
               court generally cannot grant different relief, or relief on different grounds, than stated in the notice of
               motion." (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter, Jun. 2018 Update),          9:38.) In his
               Notice of Motion, he stated, "if allowed to intervene, the Proposed Intervenor will [then] move to stay
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                                                                                                                   Case Number: 18-CIV-01255

               plaintiff's action until the conclusion of that investigation." (Notice of Motion, filed Jun. 20, 2018, p. 2:5-
               6, 2:11-13. See also MPA ISO Motion, supra, at p. 15:19-23, 17:11-13.)

               Lastly, Mr. Gericke's submission of reply evidence is improper. "The general rule of motion practice,
               which applies here, is that new evidence is not permitted with reply papers." (Jay v. Mahaffey (2013)
               218 Cal.App.4th 1522, 1537. See also Weil & Brown, supra, at          9:106.1.)

               Mr. Molumphy shall prepare formal order consistent with order herein.

               At 9:21 a.m.-Court adjourned.
              Case Events

              Others
              Comments:

             Future Hearings and Vacated Hearings
             February 01, 2019 2:00 PM Complex Case Status Conference
             Swope, V. Raymond




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