Judge Alison Mackenzie, Case Number: 23STCV12462, Date: 2024-01-22 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV12462, Date: 2024-01-22 Tentative Ruling

Case Number: 23STCV12462 Hearing Date: January 22, 2024 Dept: 55

NATURE OF PROCEEDINGS: Plaintiffs’ Demurrer to Defendants’ Answer to the Complaint.

The demurrer is sustained, with 20 days’ leave to amend.

Background

Plaintiffs DENISE FULLER and CEDRIS BUNN JR. (“Plaintiffs”) bring this action against Defendants HENRY BOORSTIN and WILLIAM BOORSTIN (“Defendants”), the owners of the apartment building where Plaintiffs reside, for claims based on numerous alleged habitability violation in the apartment. Defendants filed Answers generally denying the allegations of Plaintiffs’ Complaint and asserting twenty-six affirmative defenses. Plaintiffs filed this demurrer to the 7ththrough-10th, 13th through-15th and 23rd Affirmative Defenses, arguing that they fail to state facts constituting a defense or are uncertain. Defendants oppose the demurrer.

Meet and Confer

A demurring party must meet and confer with the opposing party in person or by telephone before filing the demurrer. CCP § 430.41(a). Defendants contend that Plaintiffs failed to meet and confer prior to filing the demurrer. The declaration of counsel attached to Plaintiff’s motion states that he had “many” meet and confers with defense counsel though fails to explain if such meetings took place in person or on the phone. (Partiyeli Decl., ¶ 3.) This is sufficient to satisfy the meet and confer requirement.

Legal Standard

A party may file a demurrer to any of the defenses alleged in an answer. CCP § 430.50(b). The demurrer may be made on the ground that the defense does not state facts sufficient to constitute a defense or that the defense is uncertain. CCP § 430.20(a), (b); Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873, 880. “[T]he defect in question need not appear on the face of the answer. The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” South Shore Land Co. v. Petersen (1964) 226 Cal. App. 2d 725, 733.

An answer should contain a defendant’s affirmative defenses to the complaint that would otherwise not be at issue under a general denial of the complaint’s allegations. Such affirmative defenses are “new matter.” 431.30(b)(2). To constitute new matter, affirmative defenses must be styled in the fashion of “yes, the allegations are true, but …” FPI Dev., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383. An answer’s affirmative defenses must aver facts as carefully as is required for complaints. Id. at 384. “Affirmative defenses must not be pled as ‘terse legal conclusions,’…” but rather as facts averred in as much detail as is required in complaints. In re Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 813.

A demurrer for uncertainty is disfavored and will only be sustained where the pleading is so unintelligible that a defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. Khoury v Maly’s of Calif., Inc. (1993) 14 Cal.App.4 612, 616. Even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

Analysis

Defendants’ 7th affirmative defense for waiver and 8thaffirmative defense for estoppel are not merely denials of Plaintiffs’ claim in the Complaint. They instead constitute “yes, the allegations are true, but…” type of defenses. The Complaint has no allegations that would support such defenses. The defenses must allege facts showing why Plaintiffs have waived their claims or are estopped from asserting claims.

The 9th affirmative defense for laches constitutes new matter because the Complaint allegations do not allege and supply the elements of such a defense. The Complaint does not allege any definite period to calculate laches delay (Complaint, ¶ 61 (“The Plaintiffs have resided in the Subject Property since in or around November of 2019….”)). [Emphasis added.] Some dates that are specified are within only a few months of filing the Complaint on 6/1/23, indicating only a short delay that would not give rise to a laches defense (e.g., Complaint, ¶ 72 (“Los Angeles Public Health Department cited the Defendants for the lack of ventilation in the kitchen on March 29, 2023,…”)).

The same goes for the 10th affirmative defense for unclean hands, which merely asserts that Plaintiffs “are barred from recovery under the doctrine of unclean hands.” The Complaint does not admit that Plaintiffs had unclean hands but instead denies Plaintiffs engaged in any bad conduct (e.g., Complaint, ¶ 99 (“ Plaintiffs did not cause, create or contribute to the existence of the defective conditions alleged herein.”)). Defendants must supply the factual allegations giving rise to their unclean hands defense.

The 13th affirmative defense alleges Plaintiff violated the covenant of good faith and fair dealing. This defense is devoid of any factual allegations about how Plaintiff committed any such violation. Such facts constitute “new matter” because the Complaint’s allegations have no facts regarding any breach or violation on the part of Plaintiffs.

The 14th affirmative defense alleges Plaintiffs did not comply with various Civil Code statutes. Plaintiffs’ uncertainty argument is that this defense does not state sufficient facts, i.e., what Plaintiffs did to violate such code sections. The uncertainty argument is thus entirely duplicative of Plaintiffs’ arguments for failing to state a claim. The Court agrees that the defense does not plead any facts to establish violations of the code sections.

The 15th affirmative defense for offset states that any amount of damages awarded to Plaintiffs should be offset by amounts owed to Defendants. This is another defense that raises a new matter. The Complaint has no allegations regarding amounts allegedly owed to Defendants-Defendants must plead facts in their answer that would support such a defense.

The 23rd affirmative defense alleges Plaintiffs failed to fulfill their obligations under the alleged contract. As with the 14th affirmative defense, Plaintiffs argue this defense is uncertain because it does not contain facts to state such a defense. The Court agrees that Defendants failed to state facts sufficient for this defense. Defendants must include facts about how Plaintiffs allegedly failed to fulfill their obligations to support this defense.

While Plaintiffs mention the 24th affirmative defense in their motion, that defense is not listed in the notice of the demurrer. The defense thus is not part of Plaintiffs’ demurrer and the Court does not consider Plaintiffs’ arguments regarding it.

The Court therefore sustains the demurrer with leave to amend the answer.