Judge: John C. Gastelum, Case: 22-01240535, Date: 2023-08-29 Tentative Ruling

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

Tentative Ruling: The Demurrer to the First through Third Causes of Action of Franklin’s Cross-Complaint is SUSTAINED, with 21 days’ leave to amend. (ROA 82.)  The Motion to Strike Cross-Complaint of Cross-Complainant Steven Leo Franklin (“Franklin” or “Cross-Complainant”) filed by Plaintiff/Cross-Defendant, Bianco Enterprises, LLC (“Bianco” or “Cross-Defendant”) is MOOT. (ROA 83.)

Initially, the Court notes Franklin late-filed and late-served oppositions to the instant motion and demurrer on July 13, 2023. No reply to these oppositions has been filed. The Court declines to consider all late filings. The demurrer and motion to strike are rendered unopposed.

(1) Demurrer

Failure to oppose the demurrer may be construed as having abandoned the claims.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue”].) In addition, it is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].)

Here, Cross-Complainant Franklin filed and served late oppositions to the demurrer or the motion to strike. The Court declines to consider them. Therefore, the Court construes Franklin’s failure to oppose the demurrer as an abandonment of his claims and a concession of the arguments made therein. The demurrer is SUSTAINED, with 21 days’ leave to amend.

Franklin to file an amended cross-complaint within 21 days of the notice of ruling.

(2) Motion to Strike

Given the above, the motion to strike is MOOT.

Bianco to give notice.