Judge: Richard Y. Lee, Case: 30-2021-01232574, Date: 2022-09-08 Tentative Ruling

Plaintiff, Jimmy Dickerson (“Plaintiff”) moves for an order sustaining a demurrer to the Answer of Defendant Elmore Motors dba Elmore Toyota (“Defendant”) and the First, Second, Third, Fourth, and Fifth Affirmative Defenses.

Plaintiff contends that the first through fifth affirmative defenses in Defendant’s Answer are not supported by any facts, are conclusory, and do not appear to apply to the instant breach of contract case. Plaintiff also contends that they initiated the meet and confer process, that Defendant’s attorney indicated that they would amend the Answer but failed to do so, and that Defendant’s counsel agreed to extend the deadline to file the Demurrer to the Answer at least until June 11, 2022.

Defendant has filed a Notice of Non-Opposition providing that Defendant does not oppose Plaintiff’s Demurrer to the Answer, but seeks leave to amend its Answer.

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].) By providing it does not oppose, Defendant thus concedes to Plaintiff’s contentions including that that the first through fifth affirmative defenses in Defendant’s Answer are not supported by any facts.

In addition, a 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”].)  By parity of reasoning, the failure to oppose Plaintiff’s demurrer may be construed as Defendant having abandoned Defendant’s defenses.

In light of Defendant’s non-opposition, and request for leave to amend its Answer, the Court SUSTAINS the Demurrer to the Answer, with leave to amend. Defendant to file an amended answer within 20 days of the notice of ruling.

Plaintiff to give notice.