Judge Richard Y. Lee, Case 30-2022-01242035 2022-10-13 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2022-01242035, Date: 2022-10-13 Tentative Ruling

Defendants, Eric Zamucen and Sheila Zamucen (“Defendants”) move for an order granting judgment on the pleadings as to the First, Second, Third, Fourth, and Fifth Causes of Action, as to each cause of action individually and, alternatively, as to all causes of action, collectively, pursuant to Code of Civil Procedure section 438 as well as to the common law non statutory bases for motions for judgment on the pleadings. (See Notice of Motion, 2:2-4.)

Defendants contend that the Complaint arises out of obligations of a written agreement, namely, the Operating Agreement for a limited liability company known as 17848 Sky Park Circle LLC (“Skypark”), and that Defendants cannot be liable for any of the causes of action as Defendants are not parties to the Operating Agreement and did not sign the Operating Agreement. Defendants also assert that the Operating Agreement that is attached as Exhibit A to the Complaint contains an integration clause stating it is the complete agreement which cannot be modified absent a writing signed by all parties, and that the terms of the Operating Agreement prevail over Plaintiff’s inconsistent allegations that Defendants are parties to the Operating Agreement. In turn, Defendants contend that Plaintiff has not, and cannot plead and prove the existence of an agreement with Defendants for the First Cause of Action for Breach of Contract. As to the Second Cause of Action for Fraud, Defendants contend that it is a claim for fraud based on promises allegedly made without an intent to perform and is based on the Operating Agreement to which Defendants are not parties such that the claim has no merit. Defendants also contend that the Third Cause of Action for Intentional Interference with Economic Relationship and Fourth Cause of Action for Negligent Interference with Economic Relationship rely on the same nonexistent contractual relationship as well as contend that there are no allegations of interference with contract, and even assuming there were, a party cannot be sued for interference with a contract to which they are a party. As to the Fifth Cause of Action for Conspiracy, Defendants contend this claim also relies on the Operating Agreement to which Defendants are not parties, and that if even if there were an agreement, there can be no conspiracy to breach a contract to which one is a party.

On September 22, 2022, the Court continued the hearing to October 13, 2022, ordered the parties to meet and confer, and ordered Defendants’ counsel to file a declaration no later than nine (9) court days before the hearing date describing the parties’ meet and confer efforts, and specifying what issues have been resolved, or remain for the court to resolve.

On September 30, 2022, Defendants filed two declarations: (1) “Declaration of Anthony Ditty in Response to Declaration of Phillip Greer and Plaintiff’s Request for Continuance” dated June 28, 2022; and (2) “Corrected Declaration of Anthony Ditty Regarding Meet and Confer Efforts and Inability to Resolve the Motion for Judgment on the Pleadings” dated September 30, 2022 (ROA 107).

The first declaration appears to have been filed for the June 30, 2022, hearing. As that hearing date has passed and the Court has already issued its Order dated June 30, 2022, the Court declines to consider the first declaration.

The second declaration provides that the parties met and conferred and concluded that they have a basic dispute on the law as to whether Defendants have individual liability under a theory of agency; that Plaintiff believes it can add additional facts to the complaint which Defendants believes will not correct the deficiency; that Plaintiff believes that the conspiracy allegation can stand on its own which Defendants believe is contrary to the law; and that the parties request the court to rule on the motion. (Corrected Declaration of Anthony Ditty Regarding Meet and Confer Efforts and Inability to Resolve the Motion for Judgment on the Pleadings, ¶¶ 1-6.)

The Court finds that the parties sufficiently met and conferred.

Plaintiff’s Opposition

On September 15, 2022, Defendants filed a reply, asserting that the opposition was unauthorized based on the Court’s June 30, 2022, Order, and untimely filed and served.

The instant motion was initially set for hearing on June 30, 2022. At the time of that original hearing, no opposition had been filed. Pursuant to the Court’s June 30, 2022, Minute Order, Plaintiff declined to stipulate to a Temporary Judge, and the motion was continued to September 22, 2022, “with no further briefing.” (ROA 79.)

Defendants correctly argue that Plaintiff filed an opposition to the instant motion on September 14, 2022 (ROA 82), in contravention to the Court’s June 30, 2022, Order. In that opposition, Plaintiff does not address the Court’s June 30, 2022 Order, and provides no explanation for why no opposition was timely filed for the original hearing on June 30, 2022.

In addition, all papers opposing a motion must be served and filed at least nine (9) court days before the hearing. (Code Civ. Proc. § 1005(b).) While a paper may not be rejected for filing on the ground that it was untimely submitted for filing, the court, in its discretion, may refuse to consider a late filed paper. (California Rules of Court, rule 3.1300(d).) If the court does so, the minutes or order must so indicate. (Ibid.)

Here, as noted by Defendants, Plaintiff’s opposition was filed and served only six (6) court days before the then scheduled September 22, 2022, hearing date, such that it was also untimely. Plaintiff’s opposition fails to state why the Court should authorize Plaintiff’s late-filed and late-served opposition and consider Plaintiff’s opposition despite the Court’s June 30, 2022 Order.

In light of the Court’s June 30, 2022, Order prohibiting further briefing, and Plaintiff’s late filing and service, the Court declines to consider Plaintiff’s unauthorized and late opposition. In turn, the Court declines to consider Defendants’ reply filed on September 15, 2022. (ROA 98.) Based on the foregoing, the motion is deemed unopposed.

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 failing to oppose the motion, Plaintiff concedes all of the contentions and arguments in the moving papers.

Although it is questionable whether the deficiencies to the Complaint may be corrected, as the instant motion is an attack on the original complaint, the Court will afford Plaintiff an opportunity to amend.

Thus, the Court GRANTS the motion, with 10 days’ leave to amend.

Defendants to give notice.