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This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 11:44:10 (UTC).

XIUBIN YU VS JOHNSON WAIZU CHOW ET AL

Case Summary

On 08/02/2016 XIUBIN YU filed a Contract - Other Contract lawsuit against JOHNSON WAIZU CHOW. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ROBERT B. BROADBELT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9310

  • Filing Date:

    08/02/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ROBERT B. BROADBELT

 

Party Details

Plaintiff and Petitioner

YU XIUBIN

Defendants and Respondents

TJSC CONSTRUCTION

TAN CONSTRUCTION INC

CHOW CONSTRUCTION INC

CHOW JOHNSON WAIZU

CHOW YAN

JOHNSON CHOW CONSTRUCTION

DOES 1-100

ZHONG DOE 6 SELINA D

ZHONG DOE 5 RAYMOND M DBA PERFECT DESIGN & DEVELOPMENT INC.

PERFECT DESIGN & INVESTMENT INC. DOE 8

EDWARD DOE 1 TOM HOM AKA EDWARD TOM HOM

PERFECT DESIGN & DEVELOPMENT INC. DOE 2

PERFECT DESIGN & ENGINEERING INC. DOE3

CHOW DOE 7 SILVANA

ZHING DOE 4 RAYMOND M DBA PERFECT DESIGN & ENGINEERING INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHANG MATTERN LLP

CHANG GRACE LEA

Defendant Attorneys

LAW PHILIP C ESQ.

SKOVHOLT NANCY

RHAMES MICHAEL

 

Court Documents

COURT APPROVED STIPULATION TO CONTINUE TRIAL DATE AND RELATED DATES; ORDER

12/21/2017: COURT APPROVED STIPULATION TO CONTINUE TRIAL DATE AND RELATED DATES; ORDER

EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL DATE

4/6/2018: EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL DATE

NOTICE RE: CONTINUANCE OF HEARING

7/27/2018: NOTICE RE: CONTINUANCE OF HEARING

Unknown

11/26/2018: Unknown

Amendment to Complaint (Fictitious/Incorrect Name)

12/12/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Notice of Ruling

12/13/2018: Notice of Ruling

Proof of Personal Service

1/23/2019: Proof of Personal Service

Proof of Service by Substituted Service

1/23/2019: Proof of Service by Substituted Service

Declaration

2/13/2019: Declaration

Proof of Service by Substituted Service

2/14/2019: Proof of Service by Substituted Service

Notice

3/19/2019: Notice

Notice of Change of Firm Name

3/20/2019: Notice of Change of Firm Name

PROOF OF SERVICE SUMMONS

9/9/2016: PROOF OF SERVICE SUMMONS

SUMMARY OF CASE IN SUPPORT OF REQUEST FOR ENTRY OF DEFAULT AGAINST TJSC CONSTRUCTION, INC.

1/12/2017: SUMMARY OF CASE IN SUPPORT OF REQUEST FOR ENTRY OF DEFAULT AGAINST TJSC CONSTRUCTION, INC.

Unknown

1/12/2017: Unknown

SUBSTITUTION OF ATTORNEY

7/18/2017: SUBSTITUTION OF ATTORNEY

EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL DATE AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ETC

12/1/2017: EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL DATE AND RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ETC

68 More Documents Available

 

Docket Entries

  • 05/16/2019
  • Substitution of Attorney; Filed by Tom Hom Edward (Doe 1) (Defendant)

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  • 05/10/2019
  • Declaration (and Exhibits in Support of Motion under CCP 426.50); Filed by Johnson Waizu Chow (Defendant)

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  • 05/10/2019
  • Motion for Order (For Leave to File Compulsory Cross Complaint); Filed by Johnson Waizu Chow (Defendant)

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  • 03/20/2019
  • Notice of Change of Firm Name; Filed by Xiubin Yu (Plaintiff)

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  • 03/19/2019
  • Notice ( of Hearing on Demurrer); Filed by Perfect Design & Investment, Inc. (Doe 8) (Defendant); Selina D Zhong (Doe 6) (Defendant); Raymond M Zhong (Doe 5) (Defendant) et al.

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  • 03/19/2019
  • Demurrer - without Motion to Strike; Filed by Selina D Zhong (Doe 6) (Defendant); Raymond M Zhong (Doe 5) (Defendant); Raymond M Zhing (Doe 4) (Defendant) et al.

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  • 03/15/2019
  • Answer (to First Amended Complaint); Filed by Chow Construction, Inc (Defendant); Johnson Waizu Chow (Defendant); Johnson Chow Construction (Defendant) et al.

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  • 02/27/2019
  • Declaration re: Due Diligence; Filed by Xiubin Yu (Plaintiff)

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  • 02/25/2019
  • Answer; Filed by Tom Hom Edward (Doe 1) (Defendant)

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  • 02/14/2019
  • First Amended Complaint; Filed by Xiubin Yu (Plaintiff)

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128 More Docket Entries
  • 10/05/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 09/09/2016
  • PROOF OF SERVICE SUMMONS

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  • 09/09/2016
  • PROOF OF SERVICE SUMMONS

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  • 09/09/2016
  • Proof-Service/Summons; Filed by Xiubin Yu (Plaintiff)

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  • 09/09/2016
  • Proof-Service/Summons; Filed by Xiubin Yu (Plaintiff)

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  • 08/09/2016
  • ORDER TO SHOW CAUSE HEARING

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  • 08/09/2016
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 08/02/2016
  • Complaint; Filed by Xiubin Yu (Plaintiff)

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  • 08/02/2016
  • SUMMONS

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  • 08/02/2016
  • COMPLAINT FOR DAMAGES 1. BREACH OF CONTRACT; ETC

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Tentative Rulings

Case Number: BC629310    Hearing Date: January 22, 2021    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

xiubin yu ;

Plaintiff,

vs.

johnson waizu chow , et al.;

Defendants.

Case No.:

BC629310

Hearing Date:

January 22, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

(1) DEMURRER TO First amended CROSS-COMPLAINT;

(2) MOTION TO STRIKE PORTIONS OF first amended CROSS-COMPLAINT

AND RELATED CROSS-ACTION

MOVING PARTY: Plaintiff and cross-defendant Xiubin Yu

RESPONDING PARTY: Defendants and cross-complainants Edward Tom Hom and TJSC Construction, Inc.

  1. Demurrer to First Amended Cross-Complaint;

  2. Motion to Strike Portions of First Amended Cross-Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer and motion to strike.

On December 16, 2019, cross-complainant Johnson W. Chow (“Chow”) filed a cross-complaint in this action against cross-defendants Xiubin Yu (“Yu”) and Jerson Trade Company, asserting causes of action for (1) breach of written contract, (2) common count: service/materials provided, (3) fraud, (4) conversion, (5) unjust enrichment, and (6) violations of ordinances and regulations.

Yu now demurs to Chow’s First Amended Cross-Complaint, and also moves to strike claims for punitive damages from Chow’s First Amended Cross-Complaint. (Notice of Demurrer, filed January 10, 2020, p. 2:2-5; Notice of Motion to Strike, filed January 10, 2020, p. 2:2-5.) In her demurrer and motion to strike, Yu states that, “[o]n November 4, 2019, Defendants [sic] Johnson Waizu Chow served a First Amended Cross-Complaint to [Yu] alleging 6 causes of action: Breach of Written Contract, Common Count, Fraud, Conversion, Unjust Enrichment, and Violations of Law/Statute/Ordinance against [Yu].” (Demurrer Memo of P’s & A’s, filed January 10, 2020, p. 3:21-23; Motion to Strike Memo of P’s & A’s, filed January 10, 2020, p. 3:20-22.)

But Chow has not filed a First Amended Cross-Complaint in this action. Therefore, Yu’s demurrer and motion to strike are not directed to the operative Cross-Complaint filed in this action on December 16, 2019.

For the reasons set forth above, the court orders as follows.

The court overrules cross-defendant Xiubin Yu’s demurrer.

The court denies cross-defendant Xiubin Yu’s motion to strike.

The court orders cross-defendant Xiubin Yu to file and serve her answer to cross-complainant Johnson W. Chow’s Cross-Complaint, filed December 16, 2019, within 15 days of the date of service of this order on her.

The court orders cross-complainant Johnson W. Chow to give notice of this order.

IT IS SO ORDERED.

DATED: January 22, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: BC629310    Hearing Date: January 11, 2021    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

xiubin yu ;

Plaintiff,

vs.

johnson waizu chow , et al.;

Defendants.

Case No.:

BC629310

Hearing Date:

January 11, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

Motion to be relieved as counsel

MOVING PARTIES: Philip C. Law and The Law Office of Philip C. Law

RESPONDING PARTY: n/a

Motion to be Relieved as Counsel

The court considered the moving papers. No opposition to the motion was filed.

DISCUSSION

Philip C. Law and The Law Office of Philip C. Law (“Defendant’s Counsel”) move to be relieved as counsel of record for defendant Tan Construction, Inc.

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. (2)) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’” (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].) The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.” (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

For a motion to be relieved as counsel under Code of Civil Procedure section 284, subdivision (2), California Rules of Court, rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel -- Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel -- Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel -- Civil form (MC-053)).

The court finds that Defendant’s Counsel have complied with the applicable rules and provided sufficient grounds for granting the relief requested. Accordingly, the court grants Philip C. Law and The Law Office of Philip C. Law’s motion to be relieved as counsel of record for defendant Tan Construction, Inc. Philip C. Law and The Law Office of Philip C. Law will be relieved as counsel of record for defendant Tan Construction, Inc. effective upon the filing of the proof of service of the signed “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” as to defendant Tan Construction, Inc.

The proposed “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” (Judicial Council form MC-053), which Defendant’s Counsel lodged with the court on December 16, 2020, is incomplete because it does not state the telephone number of the client in section 6. The court will require Defendant’s Counsel to provide the client’s telephone number to the court at the hearing on this motion.

Philip C. Law and The Law Office of Philip C. Law are ordered to give notice of this ruling and the “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” to defendant Tan Construction, Inc. and all parties to this action.

IT IS SO ORDERED.

DATED: January 11, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: BC629310    Hearing Date: November 06, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

xiubin yu ;

Plaintiff,

vs.

johnson waizu chow , et al.;

Defendants.

Case No.:

BC629310

Hearing Date:

November 6, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

Motion to be relieved as counsel

MOVING PARTIES: Grace Lea Chang and Grace Lea Chang, APC

RESPONDING PARTY: n/a

Motion to be Relieved as Counsel

The court considered the moving papers. No opposition to the motion was filed.

DISCUSSION

Grace Lea Chang and Grace Lea Chang, APC (“Plaintiff’s Counsel”) move to be relieved as counsel of record for plaintiff Xiubin Yu.

“The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. (2)) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’” (People v. Prince (1968) 268 Cal.App.2d 398, 406 [internal quotations omitted].) The court should also consider whether the attorney’s “withdrawal can be accomplished without undue prejudice to the client’s interests.” (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

For a motion to be relieved as counsel under Code of Civil Procedure section 284, subdivision (2), California Rules of Court, rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel -- Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel -- Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel -- Civil form (MC-053)).

The court finds that Plaintiff’s Counsel have complied with the applicable rules and provided sufficient grounds for granting the relief requested. Accordingly, the court grants Grace Lea Chang and Grace Lea Chang, APC’s motion to be relieved as counsel of record for plaintiff Xiubin Yu. Grace Lea Chang and Grace Lea Chang, APC will be relieved as counsel of record for plaintiff Xiubin Yu effective upon the filing of the proof of service of the signed “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” as to plaintiff Xiubin Yu.

Grace Lea Chang and Grace Lea Chang, APC are ordered to give notice of this ruling and the “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” to plaintiff Xiubin Yu and all parties to this action.

IT IS SO ORDERED.

DATED: November 6, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: BC629310    Hearing Date: July 14, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

xiubin yu ,

Plaintiff,

vs.

johnson waizu chow , et al.,

Defendants.

Case No.:

BC629310

Hearing Date:

July 14, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

(1) motion for reconsideration of 7/18/19 order taking off calendar demurrer to first amended complaint;

(2) Motion for leave to file second amended complaint

MOVING PARTIES: Defendants Raymond Zhong, Selina Zhong, Perfect Design & Investment, Inc., Perfect Design & Development, Inc., and Perfect Design & Engineering, Inc.

RESPONDING PARTY: Plaintiff Xiubin Yu

  1. Motion for Reconsideration of 7/18/19 Order Taking Off Calendar Demurrer to First Amended Complaint

The court considered the moving and opposition papers.

MOVING PARTIES: Plaintiff Xiubin Yu

RESPONDING PARTY: n/a

  1. Motion for Leave to File Second Amended Complaint

The court considered the moving papers. No opposition to the motion was filed

motion for reconsideration of 7/18/19 order taking off calendar demurrer to first amended complaint

  1. Background

Plaintiff Xiubin Yu (“Yu”) filed this action on August 2, 2016. The operative Second Amended Complaint (“SAC”) was filed on July 9, 2019, against, among others, defendants Raymond Zhong, Selina Zhong, and Perfect Design & Investment, Inc., Perfect Design & Development, Inc., and Perfect Design & Engineering, Inc. (collectively, “Defendants”).

On February 14, 2019, Yu filed her First Amended Complaint (“FAC”). On March 19, 2019, Defendants filed a demurrer to the FAC, set for hearing on July 18, 2019. On July 9, 2019, Yu filed the operative SAC and did not file an opposition to Defendants’ demurrer. On July 17, 2019, Defendants filed a reply brief in support of their demurrer.

On July 18, 2019, the court issued an order taking the hearing for Defendants’ demurrer to the FAC off calendar because the demurrer is moot. (Minute Order, filed July 18, 2019.)

On July 25, 2019, Defendants filed this motion for reconsideration of the court’s July 18, 2019 order taking Defendants’ demurrer to the FAC off calendar. Yu opposes the motion.

  1. Evidence

The court grants Defendants’ request for judicial notice as to Exhibits A though G.

  1. Discussion

Code of Civil Procedure section 1008 is the exclusive authority governing motions to reconsider and renewals of previous motions based on applications for an order to the court. (Code Civ. Proc., § 1008, subd. (e).) “Section 1008 applies only to renewed motions after a motion has been ruled upon by the trial court.” (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 486.) Section 1008, subdivision (a) provides:

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(Emphasis added.)

Here, Defendants contend that the court erred in taking the hearing for Defendants’ demurrer to the FAC off calendar. Defendants contend that the SAC should be disregarded and that Defendants’ demurrer to the FAC should be heard. However, the court’s order taking the hearing for Defendants’ demurrer to the FAC off calendar was not an order refusing or granting an “application for an order,” and no motion (i.e., Defendants’ demurrer to the FAC) has been ruled upon by the court. Defendants have not cited any authority showing that Code of Civil Procedure section 1008 applies to an order made on the court’s own motion to take a demurrer off calendar on the ground that it is rendered moot by the filing of an amended complaint. Therefore, Defendants’ motion for reconsideration is denied on the ground that Code of Civil Procedure section 1008 does not apply to the court’s July 18, 2019 order.

Even assuming section 1008 applies, the court finds that Defendants have failed to demonstrate new or different facts, circumstances, or law to support reconsideration of the court’s July 18, 2019 order taking the hearing for Defendants’ demurrer to the FAC off calendar. Defendants contend the court, at the time, was not able to consider Defendants’ arguments, presented in its reply brief in support of its unopposed demurrer, that Plaintiff’s SAC was improperly filed without leave of the court.

The filing of an amended complaint renders a demurrer to the original complaint moot. (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) “ ‘ “ ‘An amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.’ ” ’ [Citation.] ‘The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [Citation.] [¶] Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]’ [Citation.] Thus, the filing of an amended complaint renders moot a demurrer to the original complaint. [Citation.]” (Ibid.) Accordingly, even if the court agreed that Plaintiff’s SAC was improperly filed without leave of the court, Defendants’ demurrer to the FAC was rendered moot by the filing of an amended complaint.

For the reasons set forth above, the court denies Defendants’ motion for reconsideration of the court’s July 18, 2019 order taking the hearing for Defendants’ demurrer to the FAC off calendar.

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

On May 3, 2019, Yu filed this motion for leave to file her SAC. No opposition to the motion was filed.

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” The court may, in furtherance of justice, allow the amendment of any pleading at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted].) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . . .” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

Yu seeks leave to file an amended complaint in order to add additional defendants and allege additional facts discovered through discovery. Yu contends that the proposed amendments are directly related to the subject matter of Yu’s case and causes of action against Defendants. In light of Defendants’ non-opposition to the motion, the court finds that Yu has demonstrated that the amendments are in furtherance of justice and will not unduly prejudice Defendants. Therefore, the court exercises its discretion to grant Yu leave to file the Second Amended Complaint.

ORDER

For the reasons set forth above, the court denies defendants Raymond Zhong, Selina Zhong, Perfect Design & Investment, Inc., Perfect Design & Development, Inc., and Perfect Design & Engineering, Inc.’s motion for reconsideration of the court’s July 18, 2019 order.

The court grants plaintiff Xiubin Yu’s motion for leave to file the Second Amended Complaint.

The court orders that the Second Amended Complaint, filed July 9, 2019, is deemed the operative complaint.

Defendants Raymond Zhong, Selina Zhong, Perfect Design & Investment, Inc., Perfect Design & Development, Inc., and Perfect Design & Engineering, Inc.’s motion to strike the Second Amended Complaint, currently set for hearing on August 25, 2020, is taken off calendar as moot.

The court orders plaintiff Xiubin Yu to give notice of this order.

IT IS SO ORDERED.

DATED: July 14, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

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