Judge Cynthia A Freeland, Case 37-2021-00023432-CU-OR-NC 2023-08-11 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00023432-CU-OR-NC, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 10, 2023

08/11/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2021-00023432-CU-OR-NC RIVERA JR VS VARVEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Judgment on the Pleadings, 04/10/2023

Plaintiffs Inocencio Rivera, Jr. and Midori Rivera (collectively, 'Plaintiffs')'s motion for judgment on the pleadings as to Defendants Richard Conklin and Jonnelle Smith-Conklin (collectively, 'Defendants')'s Second Amended Answer (the 'SAA') is granted in part and denied in part.

A plaintiff may move for judgment on the pleadings if 'the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.' See Cal. Code Civ. P. § 438(c)(1)(A). A motion for judgment on the pleadings is equivalent to a demurrer. See Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal. App. 4th 667, 672. The court's analysis is limited to the face of the complaint or answer and matters subject to judicial notice. See Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73 Cal. App. 4th 679, 685; Mendoza v. Continental Sales Co. (2006) 140 Cal. App. 4th 1395, 1401; Cal. Code Civ. P. § 438(d). All properly pled material facts are deemed true. See Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. However, the court does not consider legal or factual conclusions, opinions, speculation, or allegations contrary to judicially noticed laws or facts. See Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal. App. 4th 1215, 1219-20. The court interprets the complaint or answer reasonably 'by reading it as a whole and all of its parts in their context.' Inter-Modal Rail Emp. Ass'n v. Burlington N. & Santa Fe Ry. Co. (1999) 73 Cal. App. 4th 918, 924. '[T]he allegations must be liberally construed with a view to attaining substantial justice among the parties. [The court's] primary task is to determine whether the facts alleged provide the basis for a cause of action against defendants under any theory.' Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1232 (internal citations omitted).

'A plaintiff's motion for judgment on the pleadings is analogous to a plaintiff's demurrer to an answer and is evaluated by the same standards. The motion should be denied if the defendant's pleadings raise a material issue or set up affirmative matter constituting a defense[.]' Allstate Ins. Co. v. Kim W. (1984) 160 Cal. App. 3d 326, 330-331 (internal citations omitted). 'A demurrer can be used to eliminate 'boilerplate' affirmative defenses that often appear in answers (e.g., 'waiver,' 'estoppel,' 'unclean hands,' etc.). But such demurrers are very rare, probably because they are not worth the cost when the same result can be achieved by serving requests for admission or standard form interrogatories seeking the bases for the affirmative defenses.' Weil & Brown, California Practice Guide: Civil Procedure Before Trial Ch. 7(I)-A, ¶ 7:35.1 (2021).

An answer to a complaint must contain: '(1) The general or specific denial of the material allegations of the complaint controverted by the defendant[;] [and] (2) A statement of any new matter constituting a defense.' Cal. Code Civ. P. § 431.30(b). The phrase 'new matter' refers to something relied upon by a defendant which the plaintiff does not put at issue. See Department of Finance v. City of Merced (2019) 33 Cal. App. 5th 286, 294-295; State Farm Mut. Auto. Ins. Co. v. Sup. Ct. (1991) 228 Cal. App. 3d 721, Calendar No.: Event ID: TENTATIVE RULINGS

2961240 CASE NUMBER: CASE TITLE: RIVERA JR VS VARVEL [IMAGED] 37-2021-00023432-CU-OR-NC 725. As courts have explained, '[w]hat is put in issue by a denial is limited to the allegations of the complaint . . . A defense in the nature of 'yes, those allegations are true, but . . . ' is not put in issue by the denial.' FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 383-84. With regard to pleading requirements for 'new matters' in an answer, the same pleading of ultimate facts rather than legal conclusions is required as in pleading the complaint. In particular, the answer must set forth facts 'as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.' Ibid. at 384.

The court addresses each challenged affirmative defense in turn.

Motion for Judgment on the Pleadings as to the First Affirmative Defense (Failure to State Sufficient Facts Under CCP § 430.10(e)) The first affirmative defense essentially challenges the Second Amened Complaint (the 'SAC') sufficiency. Toward that end, an objection that a cause of action does not state facts sufficient to constitute a cause of action is an objection that may be raised by demurrer or answer. See Cal. Code Civ. P. § 430.80(a); Bracker v. American National Food (1955) 133 Cal. App. 2d 338, 340 (acknowledging that failure to state a cause of action is an affirmative defense that has the same force as a general demurrer). As such, there are no facts that Defendants can plead in support of this defense, and the motion for judgment on the pleadings as to the first affirmative defense is denied.

Motion for Judgment on the Pleadings as to the Third (Unclean Hands), Fifth (Balancing of the Equities), and Seventh (In Pari Delico) Affirmative Defenses The grounds for these affirmative defenses are not put in issue with the facts as pled in the SAC and therefore must be specifically pled. As to the third affirmative defense, '[t]he doctrine [of unclean hands] demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim.' Meridian Financial Services, Inc. v. Phan (2021) 67 Cal. App. 5th 657, 685. Any conduct violating conscience, good faith, or other equitable standards is sufficient cause to invoke the unclean hands doctrine. See DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal. App. 3d 1390, 1395-1396. The misconduct giving rise to the unclean hands doctrine 'must relate directly to the transaction concerning which the complaint is made, i.e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants.' Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal. App. 2d 675, 728. In addition, the party invoking the defense must have suffered some direct prejudice. 'Whether the particular misconduct is a bar to the alleged claim for relief depends on (1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries.' Kendall-Jackson Winery, Ltd., 76 Cal. App. 4th at 749 (citing Blain v. Doctor's Co. (1990) 222 Cal. App. 3d 1048, 1060). As to the seventh affirmative defense, '[t]he doctrine of in pari delicto dictates that when a participant in illegal, fraudulent, or inequitable conduct seeks to recover from another participant in that conduct, the parties are deemed in pari delicto, and the law will aid neither, but rather, will leave them where it finds them.' Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal. App. 4th 1138, 1155, fn. 1.

The court finds that the SAA pleads the ultimate facts sufficient to state affirmative defenses for unclean hands, balancing of the equities, and in pari delicto. As to the third affirmative defense, the SAA states that 'Plaintiffs, by the statements, conduct, acts, omissions and acquiescence attributable to them, are precluded by the doctrine of unclean hands from seeking any recovery or remedy as alleged in the Second Amended Complaint.' See SAA, ¶ 24. The SAA also incorporates by reference into the third affirmative defense the allegations set forth in ¶¶ 4-19. Ibid., ¶ 23. That being said, the court must respectfully disagree with Plaintiffs that the SAA fails to plead direct prejudice suffered by Defendants as a result of Plaintiffs alleged conduct. More specifically, ¶ 19 of the SAA states that '[t]he Conklins have suffered severe distress from the abuses hurled at them by the Riveras. Beyond needing to continuously defend themselves in various frivolous legal proceedings, the Conklins were forced to move from their home after the Riveras used this legal action to pressure codefendant Victor Varvel to evict them, Calendar No.: Event ID: TENTATIVE RULINGS

2961240 CASE NUMBER: CASE TITLE: RIVERA JR VS VARVEL [IMAGED] 37-2021-00023432-CU-OR-NC uprooting their family of five.' Ibid., ¶ 19. The SAA further alleges that Plaintiffs' conduct has invaded Defendants' privacy and made them feel unsafe, inclusive of Mr. Rivera's alleged antagonization/verbal harassment of Defendants and Mr. Conklin in particular. Ibid., ¶¶ 5, 7, 8, 15. Moreover, the allegations set forth in the SAA directly relate to the subject matter set forth in the SAC and affects the equitable relations between Plaintiffs and Defendants.

As to the fifth affirmative defense, the SAA states that '[t]he greater weight of the relative equities between the parties to the Second Amended Complaint favors Defendants. Plaintiffs have harassed Defendants with verbal abuse and false reports to the police. Plaintiffs have threatened Defendants' safety while presenting false claims to the court regarding Defendants' behavior to [P]laintiffs.' See SAA, ¶ 28. The SAA also incorporates by reference into the fifth affirmative defense the allegations set forth in ¶¶ 3-19. Ibid., ¶ 27. The foregoing is pled with the requisite specificity to survive the pleading stage.

As to the seventh affirmative defense, the SAA states that 'Plaintiffs, by the statements, conduct, acts, omissions and acquiescence attributable to them, are barred from asserting any of the claims and causes of action contained in the Second Amended Complaint, insofar as they are in pari delicto to Defendants.' Ibid., ¶ 32. The SAA also incorporates by reference into the seventh affirmative defense the allegations set forth in ¶¶ 4-19. Ibid., ¶ 31. Toward that end, Plaintiffs have alleged in their SAC that Defendants have engaged in a variety of nuisance activities, including playing loud music, erecting a skateboard ramp, firing objects onto Plaintiffs' property, failing to supervise their dogs, permitting their daughter to trespass onto Plaintiffs' property, and engaging in harassing conduct toward Plaintiffs – including hurling berating language, threatening gestures, and threatening physical confrontations. The SAA, for its part, alleges that Plaintiffs have engaged in much of the same inequitable conduct, including verbally harassing Defendants and inviting Defendants into the street for a physical confrontation. The foregoing is sufficient to survive the pleading stage.

Accordingly, the motion for judgment on the pleadings as to the third, fifth, and seventh affirmative defenses is denied.

Motion for Judgment on the Pleadings as to the Fourth Affirmative Defense (Assumption of Risk) The ground for this affirmative defense is not put in issue with the facts as pled in the SAC and therefore must be specifically pled. '[T]he doctrine of assumption of risk properly bars a plaintiff's claim only when it can be established that, because of the nature of the activity involved and the parties' relationship to the activity, the defendant owed the plaintiff no duty of care.' Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal. 4th 532, 538.

The court finds that the fourth affirmative defense fails the ultimate facts sufficient to state an affirmative defense for assumption of risk. The SAA alleges that '[i]f Plaintiffs have suffered any damages or harm, which is expressly denied, Plaintiffs, by the statements, conduct, acts, omissions and acquiescence attributable to them, knowingly and voluntarily assumed the risk that they would suffer the kind of damages or harm allegedly suffered.' See SAA, ¶ 26. The SAA also incorporates by reference into the fourth affirmative defense the allegations set forth in ¶¶ 5-6 and 15. Ibid., ¶ 25. Here, the SAA does not allege that Defendants owed Plaintiffs a duty of care. In addition, and notably, California courts take a restrained approach to apply the assumption of risk doctrine outside of the sports and recreation context.

See Knight v. Jewitt (1992) 3 Cal. 4th 296; Childs v. County of Santa Barbara (2004) 115 Cal. App. 4th 64; American Golf Corp. v. Sup. Ct. (2000) 79 Cal. App. 4th 30. Defendants cite no authority for the proposition that the assumption of risk doctrine should apply under the present circumstances.

Accordingly, the court grants the motion for judgment on the pleadings as to the fourth affirmative defense with leave to amend to address the foregoing deficiencies, if possible. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967).

Motion for Judgment on the Pleadings as to the Sixth Affirmative Defense (Offset) Calendar No.: Event ID: TENTATIVE RULINGS

2961240 CASE NUMBER: CASE TITLE: RIVERA JR VS VARVEL [IMAGED] 37-2021-00023432-CU-OR-NC The ground for this affirmative defense is not put in issue with the facts as pled in the SAC and therefore must be specifically pled. 'The right to a setoff is based on the equitable principle that when parties in litigation hold cross-demands for money, one demand should be applied against the other and the plaintiff may recover the balance due, if any.' Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC (2021) 67 Cal. App. 5th 1149, 1158. Setoff is limited to reducing or defeating a plaintiff's claim. See Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal. 4th 189, 195.

The court finds that the sixth affirmative defense fails the ultimate facts sufficient to state an affirmative defense for offset. The SAA states that '[b]y virtue of the statements, conduct, acts, omissions and acquiescence attributable to Plaintiffs, and each of them, pursuant to CCP § 431.70, Defendants have incurred damages and expenses, all in the amounts to be ascertained according to proof at trial and applied as an offset against the claims and causes of action contained in the Second Amended Complaint.' See SAA, ¶ 30. The foregoing is insufficient to survive the pleading stage. While the SAA alleges that Defendants feel that have been damaged by Plaintiffs' conduct, the SAA fails to identify any money that Plaintiffs owe Defendants. Nor have Defendants pleaded any cross-demand for money.

Accordingly, the court grants the motion for judgment on the pleadings as to the sixth affirmative defense with leave to amend to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Motion for Judgment on the Pleadings as to the Eighth (Proposition 51), Seventeenth (Negligence of Others), and Nineteenth (Negligence) Affirmative Defenses Proposition 51, codified at California Civil Code § 1431.2, provides that '[i]n any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.' Cal. Civ. Code § 1431.2(a). See also Henry v. Sup. Ct. (2008) 160 Cal. App. 4th 440. This is, in essence, a comparative fault defense. To establish a comparative fault affirmative defense, a defendant must prove that: (1) the plaintiff was negligent, and (2) the plaintiff's negligence was a substantial factor in causing his or her harm. See CACI 405. See also CACI 3960. In this case, a review of the SAC reveals that Plaintiffs did not put their level of fault at issue. Accordingly, Defendants' Proposition 51 defense is new matter that must be specifically pleaded in the SAA. It has not been. More specifically, the SAA alleges that 'the damages or harm allegedly suffered by Plaintiffs, if any, was proximately caused by the acts and omissions of persons and entities other than Defendants.' See SAA, ¶ 34. However, the SAA does not plead the ultimate facts demonstrating what legal duty of care, if any, Plaintiffs or other 'persons and entities other than Defendants' owed and how those individual(s) breached said duties. Nor does it specifically identify those third parties and/or entities. The SAA conclusory allegation that Plaintiffs' own negligence proximately caused their damages, without more, is insufficient to survive the pleading stage. This analysis applies with equal force to Defendants' seventeenth and nineteenth affirmative defenses.

Accordingly, the court grants the motion for judgment on the pleadings as to the eighth, seventeenth, and nineteenth affirmative defenses with leave to amend to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Motion for Judgment on the Pleadings as to the Twentieth Affirmative Defense (Complaint Frivolous and in Bad Faith) This affirmative defense essentially challenges the SAC's sufficiency. As such, there are no facts that Defendants can plead in support of this defense, and the motion for judgment on the pleadings as to the twentieth affirmative defense is denied.

Motion for Judgment on the Pleadings as to the Twenty-Fourth Affirmative Defense (Reservation) Calendar No.: Event ID: TENTATIVE RULINGS

2961240 CASE NUMBER: CASE TITLE: RIVERA JR VS VARVEL [IMAGED] 37-2021-00023432-CU-OR-NC This is not an affirmative defense. To the extent that discovery reveals the existence of affirmative defenses not previously pled, Defendants certainly could seek leave of court to file a further amended answer, assuming Plaintiffs would not so stipulate. As a result, the motion for judgment on the pleadings as to the twenty-fourth affirmative defense is granted, at this time, without leave to amend.

In light of the foregoing, the court: (1) grants the motion for judgment on the pleadings with leave to amend as to the fourth, sixth, eighth, seventeenth, and nineteenth affirmative defenses; (2) grants the motion for judgment on the pleadings without leave to amend as to the twenty-fourth affirmative defense with the understanding that Defendants can seek leave to amend in the future if discovery reveals the existence of affirmative defenses not previously pled; and (3) denies the motion for judgment on the pleadings as to the first, third, fifth, seventh, and twentieth affirmative defenses. Defendants shall file and serve a third amended answer within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 11, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 11, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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