Demurrer
not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”
Plaintiff’s two causes of action for constructive fraud and actual fraud are based on allegedly fraudulent representations and fraudulent concealment/omissions by Ms. Hulburt, for which the City cannot be liable. (See SAC, ¶¶ 80, 87).
Accordingly, the demurrer is also sustained on this basis.
Defendant shall provide notice.
3 Tamadon vs. Choe TENTATIVE RULING:
Demurrer
Defendant Cliff Wagner demurs to the First Amended Complaint of Plaintiffs Gitty Tamadon, Ray Reza Tamadon, Matthew Greenberger, Eileen Hishino, Jun Hoshino, Jennie Ni, Heather Oglesby, Gavin Oglesby, Raj Pranav, and Raghav Sood. For the following reasons, the demurrer is SUSTAINED with 30 days leave to amend.
Defendant Wagner demurs to the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 19th, 20th, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 32nd, 33rd, 34th, 35th, 36th, 37th, 38th, 39th, 40th, 41st, 42nd, 43rd, 44th, 45th, 47th, 48th, 50th causes of action in Plaintiffs’ FAC, challenging the sufficiency of each claim.
The court record shows Plaintiffs were served with all moving papers and notice of this continued hearing. (See ROA # 1577, 1579, 1581, 1583.) Plaintiffs chose not to file any opposition to the demurrer.
The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [deeming the plaintiffs to have abandoned an issue where the plaintiffs did not oppose the demurrer on that issue and submitted no argument on the issue in their appellate briefs].) In addition, it is axiomatic that the failure to challenge a contention in a brief results in the concession of that argument. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [finding plaintiffs conceded an issue by failing to argue the contrary]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [holding “failure to address the
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threshold question . . . effectively concedes that issue and renders its remaining arguments moot”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [finding an issue is impliedly conceded by failing to address it].)
The court deems Plaintiffs’ failure to oppose the demurrer to be a concession regarding the merits of Defendant Wagner’s demurrer and on that basis, will sustain the demurrer.
Should Plaintiff desire to file an amended complaint that addresses the issues identified in Defendant Wagner’s demurrer, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.
Moving Defendant is ordered to give notice.
4 Melnykov vs. TENTATIVE RULING: Hyundai Motor America Motion to Compel Arbitration
Defendant Hyundai Motor America moves to compel Plaintiff Ivan Melnykov to arbitrate the claims asserted in the Complaint and to stay this matter pending completion of arbitration. For the following reasons, the motion is DENIED. Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)
This motion is based on two separate arbitration agreements. First, the motion seeks to compel arbitration based on an arbitration provision contained in the Hyundai “2022 Owner’s Handbook & Warranty Information” (“Owner’s handbook” or “Handbook”). Second, the motion seeks to compel arbitration based on an arbitration provision contained in a Hyundai Bluelink “Connected Services Agreement Terms and Conditions” (“CSA”).
As further explained below, defendant has failed to demonstrate plaintiff’s notice of or assent to the arbitration agreement in the owner’s handbook and has therefore failed to establish the existence of this agreement. As for the arbitration provision in the CSA, the scope of this provision does not cover plaintiff’s claims in this action.
Each arbitration provision is addressed in turn below.
Owner’s Handbook and Warranty Information
Defendant’s motion is based in part on the arbitration agreement in the Owner’s Handbook, typically found in the glove compartment of