Demurrer to First Amended Complaint; Case Management Conference
103 Rios vs. Walt Disney Parks & Resorts U.S., Inc.
25-01511657 1. Demurrer to First Amended Complaint 2. Case Management Conference Defendant Walt Disney Parks and Resorts U.S., Inc. (“Defendant”) demurs to the fourth cause of action for Unruh Civil Rights Act and fifth cause of action for California Disabled Persons Act. The demurrer is unopposed.
Based on her nonopposition, the Court may “deem plaintiff[] to have abandoned the issues” or “claims” addressed in the Demurrer. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) The non-opposition is consider an implied concession to the merit of Defendant’s arguments presented in the Demurrer. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566, as modified (Jan. 25, 2000) [“By failing to argue the contrary, plaintiffs concede this issue.”]; Glendale Redevelopment Agency v.
Parks (1993) 18 Cal.App.4th 1409, 1424 [holding that “by failed to address” an issue, the issue is “impliedly concede[d].”]; and Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“Its failure to address the threshold question of intent effectively concedes that issue and renders its remaining arguments moot.”].)
The Court notes that the operative First Amended Complaint was filed on 12/11/2025. There is no proof of service on file that establishes that the FAC was served on moving Defendant. As such, the Court is unable to calculate whether the demurrer is timely pursuant to Code of Civil Procedure section 430.40, which states that “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Code Civ. Proc., § 430.40.)
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Plaintiff has not carried her burden to establish that she served Defendant with the FAC and therefore the Court will consider the Demurrer timely. Given the above, the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Moving Defendant to give notice.
104 Lin vs. FCA US LLC
25-01530317 Demurrer to Answer Plaintiffs Michael C. Lin and Michael Lin, Inc.’s demurrer to Defendant FCA US LLC’s Amended Answer is SUSTAINED in part with leave to amend and OVERRULED in part.
Generally, in addition to denials, the answer should contain whatever affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial. Such defenses or objections are referred to as “new matter.” (CCP § 431.30(b); Department of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294-295 (DOF’s petition alleged it made findings; City’s general denial did not put at issue correctness of findings, which was new matter that needed to be pled as affirmative defense.).)
Any issue on which defendant bears the burden of proof at trial is “new matter” and must be specially pleaded in the answer. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239—“It has long been held that if the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter” (emphasis in original; internal quotes omitted); Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 755-756; California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.)
The demurrer to Defendant’s second and seventh affirmative defenses is OVERRULED on the grounds