Judge: Colin Leis, Case: 21STCV14689, Date: 2022-08-05 Tentative Ruling

Case Number: 21STCV14689    Hearing Date: August 5, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Plaintiff Cesar Romero

RESPONDING PARTY:       Defendants The F.A. Bartlett Tree Expert Company and Fidelity and Deposit Company of Maryland

Plaintiff’s Motion for Judgment on the Pleadings

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff Cesar Romero filed this action on April 19, 2021. This action arises out of a dispute between neighbors about trimming trees. Plaintiff filed the operative Second Amended Complaint (“SAC”) in December 2021. Defendants The F.A. Bartlett Tree Expert Company and Fidelity and Deposit Company of Maryland (jointly, “Bartlett”) filed an answer to the SAC on May 24, 2022.

            Plaintiff now moves for judgment on the pleadings as to Bartlett’s answer.  

REQUEST FOR JUDICIAL NOTICE

            The court grants Plaintiff’s request filed on July 12, 2022, for judicial notice of Exhibit 1.

The court also grants Plaintiff’s request for judicial notice of the items filed in support of Plaintiff’s reply. The court takes judicial notice of those items solely on the ground that Plaintiff’s second amended complaint attached them as exhibits. (Evid. Code 452,§ subd. (d).) The court does not take judicial notice under Evidence Code section 452, subdivision (h).

LEGAL STANDARD

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

An answer to a complaint must contain “[t]he general or specific denial of the material allegations of the complaint controverted by the defendant” and “[a] statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subd. (b).) A plaintiff may demur to an answer on the ground of insufficient pleading of defenses and on the ground that the answer is uncertain.  (Code Civ. Proc. § 430.20.) Every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (Code Civ. Proc. § 431.30, subd. (g).) As a general rule, defendants must allege facts in support of affirmative defenses. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint’” are not well pled and cannot survive a demurrer].)

DISCUSSION

The court finds that Plaintiff did not attempt in good faith to meet and confer before filing his motion. His failure is not, however, grounds to deny his motion. (Code of Civ. Proc. § 439, subd. (a)(4).)

Plaintiff contends that all of Bartlett’s affirmative defenses are deficient because none contain any factual allegations to support them. The court finds that the following affirmative defenses require pleading additional facts: 3, 4, 9, 10, 12, 14, 16, 18, 19, and 20. The court finds that the remaining affirmative defenses do not require pleading any additional facts.

CONCLUSION

Based on the foregoing, the court grants Plaintiff’s motion for judgment on the pleadings, with leave to amend, as to the following affirmative defenses: 3, 4, 9, 10, 12, 14, 16, 18, 19, and 20. The court otherwise denies Plaintiff’s motion.

The court orders Bartlett to file and serve an amended answer, if any, within 20 days of the date of this order.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 5, 2022

_____________________________

Colin Leis

Judge of the Superior Court