Judge: John C. Gastelum, Case: 21-01232314, Date: 2023-03-27 Tentative Ruling

(1) Demurrer to First Amended Cross-Complaint (2) Motion to Strike Cross-Complaint (3) CMC

Ruling: (1-2) Off Calendar – no hearing will be held.  Plaintiff/Cross-Defendant John Bui (“Plaintiff”) demurs to the First Amended Cross-Complaint of Defendant/Cross-Complainant Tam Vu Truong (“Defendant”) on the grounds that it fails to state facts sufficient to support any of the alleged causes of action.  Plaintiff also moves to strike Defendant’s claim for punitive damages.

As an initial matter, the Court notes that the meet and confer requirement pursuant to Code of Civil Procedure Section 430.41 has been satisfied. 

The Court construes Defendant’s failure to oppose the Demurrer as an abandonment of the claims or an admission the Demurrer has merit.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) 

Although the Demurrer is unopposed, the Court finds Defendant should be given an opportunity to cure the defects in the operative First Amended Cross-Complaint raised by Plaintiff in the Demurrer.  (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) 

Accordingly, Plaintiff’s unopposed Demurrer to the First Amended Cross-Complaint is SUSTAINED with 20 days’ leave to amend.

The Court also finds Defendant’s request for punitive damages in the First Amended Cross-Complaint fails, as all causes of action are inadequately pled.  Thus, the Motion to Strike is GRANTED with 20 days’ leave to amend.

CMC is continued to 4-11-2023, Dept. C11, at 8:45 am.