Demurrer to sixth cause of action; Motion to strike
action on a different legal theory or for different relief.” ‘ ”].) “ ‘If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. ... The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions.’ ” (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.)
The elements of res judicata are satisfied here as this Complaint hinges on whether Plaintiff is a shareholder. That claim was resolved and any attempt to re-raise this issue would require re-litigation of The Family Trust and the Lucik Trust. Accordingly, this action is barred by res judicata and the demurrer is sustained.
Leave to Amend
On demurrer, a court determines whether the complaint states facts sufficient to constitute a cause of action. If the court sustains the demurrer, it must decide whether to grant leave to amend. Leave to amend should be granted if there is a reasonable possibility that the defect can be cured by amendment. Plaintiff has the burden of proving that there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The court has difficulty seeing how Plaintiff can amend to correct the deficiencies identified in this ruling. Nevertheless, given California’s liberal rules concerning the amendment of pleadings, and given that this is the first demurrer, Plaintiff is granted leave to amend.
Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiffs shall file and serve the amended complaint within 30 days of service of the notice of ruling.
Moving Party to give notice.
4 Diaz vs. TENTATIVE RULING: Toyota Motor Sales, U.S.A., For the reasons set forth below, Defendant Toyota Motor Sales, Inc. U.S.A., Inc.’s demurrer to the sixth cause of action (fraudulent inducement-concealment) of the complaint by Plaintiff Ramon Diaz, Jr. is SUSTAINED with 30 days leave to amend.
Defendant Toyota Motor Sales, U.S.A., Inc.’s motion to strike portions of the complaint by Plaintiff Ramon Diaz, Jr. is GRANTED with 30 days leave to amend.
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Defendant challenges the sufficiency of the sixth cause of action for fraudulent inducement on the grounds that Plaintiff failed to allege fraud with the requisite specificity. Defendant contends that Plaintiff did not sufficiently allege specific facts, communications, exclusive knowledge, an actionable omission or concealment by Defendant. Further, Defendant argues that Plaintiff has failed to plead facts establishing a direct transaction or a duty to disclose. Finally, Defendant challenges the sufficiency of Plaintiff’s punitive damages allegations.
Plaintiff, however, did not file an opposition to the demurrer or motion to strike and failed to address any of the arguments that Defendant makes. 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 (“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”).)
In addition, it is axiomatic that 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).)
Accordingly, the court finds Plaintiff’s failure to substantively oppose any of the arguments raised in the demurrer and motion to strike an abandonment of the issues and a concession that Defendant’s demurrer/motion has merit.
Moving Defendant to give notice.
5 Hoang vs. OFF CALENDAR Toyota Motor Sales, U.S.A., Inc. 6 Nguyen vs. TD OFF CALENDAR Bank