Case Number: BC596025??? Hearing Date: April 23, 2016??? Dept: 37
CASE NAME: One Stop Financial Consulting, Inc., et al. v. 450 S. Western, LLC
CASE NO.: BC596025
HEARING DATE: 4/25/16
DEPARTMENT: 37
CALENDAR NO.: 11
TRIAL DATE: 9/27/16
NOTICE: OK
SUBJECT: Demurrer
DEMURRING PARTY: Defendant 450 S. Western, LLC
OPPOSING PARTY: Plaintiffs One Stop Financial Consulting, Inc. and Richvest Asset Holdings, LLC
COURT?S TENTATIVE RULING
The demurrer is overruled. Defendant to answer the complaint within 20 days. Counsel for Plaintiffs to give notice.
STATEMENT OF THE CASE
This is an action for breach of two promissory notes. As set forth in the complaint, the factual background is as follows. Plaintiffs One Stop Financial Consulting, Inc. (One Stop) and Richvest Asset Holdings, LLC (Richvest) allege that on August 18, 2014, Defendant 450 S. Western, LLC executed and delivered promissory notes, each in the amount of $195,000, to One Stop and Richvest, respectively. Plaintiffs allege that Hyun Soon Rhee is the chief executive officer of Defendant and executed the promissory notes on Defendant?s behalf. They allege that each promissory was due and payable on July 31, 2015, and that on August 17, 2015, they each made a demand for payment, which Defendant has refused to pay. This action followed on September 28, 2015.
DISCUSSION
Defendant has filed a notice of demurrer and demurrer to the sole cause of action in the complaint for breach of promissory notes. However, as Plaintiffs point out in opposition to the demurrer, Defendant does not provide a memorandum in support of the demurrer, as required by California Rules of Court, rule 3.1112(a)(3). Plaintiffs contend that the court may treat the absence of a memorandum as a concession of the complaint?s merits or as a waiver of any argument that the allegations in the complaint, when taken as true, fail as a matter of law to state a cause of action for breach of a promissory note. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [?When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived?].)
To state a cause of action for breach of a promissory note, the plaintiff must allege (1) execution and delivery of the instrument sued upon, (2) ownership of the
instrument, and (3) the amount of indebtedness together with the fact of nonpayment. (Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 815.) Plaintiffs allege these elements for each promissory note. Plaintiffs allege that Hyun Soon Rhee executed and delivered the promissory notes to Plaintiffs on behalf of Defendant, and that Plaintiffs now own the notes sued upon. (Compl. ?? 8-11, 14-17.) Plaintiffs allege that the amount of indebtedness on each note is $226,200, which consists of $195,000 in principal, $11,700 in accrued interest, and $19,500 in late fees. (Compl. ?? 12, 18.) Finally, Plaintiffs allege that Defendant has failed and refused to pay the indebtedness. (Ibid.) When taken as true, these allegations state a cause of action. Accordingly, the demurrer is overruled.