Judge: John C. Gastelum, Case: 22-01253851, Date: 2022-11-01 Tentative Ruling

(1) Demurrer to First Amended Complaint (FAC) (2) CMC

Tentative Ruling:  Defendants Wholesale Mortgage Bankers, Brent Park, and Laura Yim (“Defendants”) demur to Plaintiff Lan Tu Nghiem’s (“Plaintiff”) operative First Amended Complaint (FAC) on the grounds that the first and second causes of action fail to state facts sufficient to constitute a cause of action against Defendants.  For the reasons set forth below, Defendants’ unopposed Demurrer is SUSTAINED with 20 days’ leave to amend.

As an initial matter, the Court notes that the parties failed to meet and confer, pursuant to Code of Civil Procedure Section 430.41.

Defendants’ counsel attempted to reach Plaintiff’s counsel several times by telephone and email but was unsuccessful.  (Declaration of Michael Kim, ¶¶ 3-8.)  Because Defendants made attempts to meet and confer that went ignored, the Court will exercise its discretion to consider the Demurrer, which has merit and is unopposed. 

Plaintiff’s failure to oppose the Demurrer can be treated as an implied concession to the merits of the same.  (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)  Additionally, the Court may construe the absence of a memorandum as waiver of all grounds not supported.  (CRC 3.1113(a).)  The Court could sustain the Demurrer on this ground alone.

Moreover, the Demurrer has merit.  Though the form FAC indicates there was an oral agreement, the allegations state that Defendants agreed to lock the interest rate until February 18, 2022.  There appears to be no obligation imposed upon Plaintiff by the alleged contract, which suggests that Defendants’ alleged agreement is an illusory promise that lacks mutuality.  Moreover, as to the fraud cause of action, Plaintiff has failed to allege specific facts as to who made any alleged promise or misrepresentation or when it was said.  This does not meet the heightened pleading requirements for fraud claims.

Given the above, the Court SUSTAINS the Demurrer with 20 days’ leave to amend.

Defendants to give notice.