Excerpt: ...otion to vaca te is DENIED, and Defendant's petition to confirm is GRANTED. I. Motion to Vacate A. Standard of Review 1. FAA Under the FAA, a court may vacate an arbitration award “where the arbitrator[] exceeded [his] powers.” (9 U.S.C. § 10(a)(4).) This is a “high hurdle. It is not enough for [Plaintiff] to show that the [arbitrator] committed an error — or even a serious error. [Citations.] ‘“It is only when [an] arbitrator strays...

Excerpt: ...mitted with re ply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 - 1538.) “This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion.” (Ibid.) “ ‘[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' ” ...

Excerpt: ... file an answer to the FAC by February 28, 2025. Defendant's request for judicial notice is DENIED. As to Exhibits 1 and 2, there is no need for the Court to take judicial notice of the filings in this case to consider them. As to Exhibits 3 and 4, the Court questions Defendant's assertion that they are not being offered for the truth of the matter since Defendant appears to request that the Court take notice of the substance of the communication...

Excerpt: ...strictly const rued, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty s...

Excerpt: ...(FAC) within 10 days. 1st cause of action, easement by necessity: The FAC fails to state facts sufficient to constitute this cause of action. As an initial matter, plaintiff Sabee Molloi's (plaintiff) first cause of action relies on a hypothetical situation that does not yet exist. Plaintiff currently owns a single parcel of property. At this time, there is only an “upper” and “lower” portion of the same parcel of property, regardless of ...

Excerpt: ...r demurrers. (See 4/ 26/24 and 10/25/24 Minute Orders.) As previously noted by the court, to state an IIED cause of action, a plaintiff must allege (1) “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress”; (2) “the plaintiff's suffering severe or extreme emotional distress”; and (3) “actual and proximate causation of the emotional distres...

Excerpt: ... of Plaintiff's Second Amended Complaint based on failure to state sufficient facts to constitute a cause of action. Based on applicable law and the facts as alleged, Defendant's Demurrer to the Second Amended Complaint is sustained without leave to amend (CCP§430.41(e)(1)). Defendant School District argues it is immune and cites to Ca Ed. Code, § 35330: Ca Ed. Code§35330 (a) The governing board of a school district or the county superintenden...

Excerpt: ...219.) The court finds defendant's arguments are not well taken. The lack of witness affidavits or specific allegations of when the basis of the 3 -day notice violations occurred is not fatal to the complaint, as such pleading is not required. The complaint contains sufficient allegations of proper service of the 3 -day notice. The complaint contains sufficient allegations of each of the elements of an unlawful detainer claim. Defendant's argument...

Excerpt: ...conduct, (4) misr epresentation, and (5) deceptive trade practices. 1 st C/A (breach of contract) To state a cause of action for breach of contract, Plaintiff must allege (1) the existence of the contract, (2) plaintiffs' performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821). Also, “[a] written contract may be pleaded e...

Excerpt: ...1 - Negligence Pla intiff fails to adequately allege a legal duty owed to her by any of the moving defendants (see Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917. [elements]; Rowland v. Christian (1968) 69 Cal.2d 108, 112 [factors to consider in whether legal duty exists]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 816 -17 [declining to impose a duty of care on an employer “to the world for all acts taken by its ...

Excerpt: ...ter the court determin es (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the relative harms suffered by the parties.” (Pleasant Hill Bayshore Disposal, Inc. v. Chip -It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695; see Code Civ. Proc., § 516.) Although the two factors are interrelated such that the greater the showing of one factor, the lesser showing the moving party must make of the other factor, a cou...

Excerpt: ... that he is enti tled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) Where a plaintiff seeks s...

Excerpt: ...tled "Defendant/Cross -Complainant/Cross -Defendant Fermanian Properties - Anaheim, LLC's Notice of Partial Withdrawa l of Summary Judgment Only as to Plaintiff Vanessa L. Hernandez -Vergara by and Through her Guardian ad Litem, Nancy Vergara as Decedent David Hernandez's Successor in Interest Off -Calendar; The MSJ Survives as to all Other Parties." (ROA 317.) To the extent Fermanian Properties contends the motion survives as to Defendants/Cross...

Excerpt: ...e fifth cause of actio n, sixth cause of action, and seventh cause of action as against KW Vision. KW Vision argues that the causes of action alleged in the Cross - Complaint do not provide for any basis to recover attorneys' fees. “Each party to an action must pay its own attorney fees unless a statute or contract requires the opposing party to pay them. [Citations.]” (LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Association (20...

Excerpt: ...Adjudication of Plaintif f's Second Cause of Action for Breach of Oral Contract is warranted because there is no affirmative defense to the cause of action and Plaintiff is entitled to summary adjudication. ISSUE 3: Summary Adjudication of Defendant's Affirmative Defenses is warranted because there is no merit to the affirmative defenses raised in Defendant's answer. DC -America's request for judicial notice of the two Complaints filed in these c...

Excerpt: ...ion for Breach o f Express Warranty: The first cause of action alleges Defendants breached the express warranty made to Plaintiff because they failed to conform the vehicle to their express warranty within a reasonable number of attempts or within 30 days and failed to return the consideration paid by Plaintiff or failed to replace the defective automobile. (Complaint, 4:6 -12.) Defendants move for judgment on the breach of express warranty cause...

Excerpt: ... (2021) 59 Cal. App.5th 1011, 1039.) Courts must assess a party's justifications with a mind towards the limited scope of discovery that is available from nonparties. (Ibid.) Particularly for non -party subpoenas, courts have scrutinized “[a] practice [that] has arisen to use the procedures of  sections 2020 and  2031 as devices to determine whether documents exist. ” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 21...

Excerpt: ...ffs have since partially complied with these requests by turning over the photos taken by Plaintiff. (Bennett DecL., ¶ 20, ExH. 9; Reply at 2:10 -12.) Defendant still seeks the photos and videos taken by Plaintiff's counsel. In their opposing papers, Plaintiffs argue that their “communications and production of documents with their attorney of record are protected by the attorney -client privilege.” (Opp'n Br. at 7:27 -28.) Generally, “[t]...

Excerpt: ... 2030.210, subd. (a ).) Code of Civil Procedure section 2030.220 requires a party responding to interrogatories to answer in a manner as “complete and straightforward as the information reasonably available” permits. (Code Civ. Proc., § 2030.220, subd. (a).) If the interrogatory cannot be answered completely, then it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) The propounding party may file a motion co...

Excerpt: ...uperior Court (1962) 58 Cal.2d 210, 220 -21; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) The court finds that plaintiff's objections were without merit and/or that plaintiff failed to justify its objections and failures fully to answer the inspection demands. Plaintiff Green Flag Compliance is ordered to serve further verified responses to the inspection demands without objections, and all responsive records within ten days. ...

Excerpt: ... unconscionab ility. I. Standard of Review “‘The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.' [Citation.] But they need not be present in the same degree. ‘Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contr...

Excerpt: ...l (The Rutter Group 2021) ¶ 9:24.3 [each motion “should normally be set forth in a separate document”].) No later than March 14, 2025, Plaintiffs are ordered to remit an additional $60 in filing fees to the Clerk of the Court. FORM INTERROGATORIES Legal Standard A propounding party may move for an order compelling responses to interrogatories at any time “[i]f a party to whom interrogatories are directed fails to serve a timely response.�...

Excerpt: ...represented b y counsel of its choice. CCP 284 states: The attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other. “A trial court's authority to disquali...

Excerpt: ..., if anything, BrightPlanet is the prevailing party. Accordingly, Plaintiff is not entitled to recover costs against BrightPlanet. Plaintiff's memorandum of costs, filed 8/15/24, is hereby stricken. Plaintiff Angel Bravo's Motion to Strike or Tax Costs Plaintiff Angel Bravo's Motion to Strike or Tax Costs is GRANTED in part. Defendant BrightPlanet Solar, Inc. has shown that it is a prevailing party entitled to recover costs under Code Civ. Proc. ...

Excerpt: ...Tolue against Defendant was dism issed, Defendant is the [Type here] [Type here] [Type here] prevailing party on the complaint and may recover certain costs incurred in defending against the complaint. (Catello v. I.T.T. Gen. Controls (1984) 152 Cal. App. 3d 1009, 1012.) “The mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face...