Judge Cynthia A Freeland, Case 37-2023-00016294-CU-OR-NC 2023-12-15 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00016294-CU-OR-NC, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - December 14, 2023

12/15/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other Real Property Demurrer / Motion to Strike 37-2023-00016294-CU-OR-NC BAYRAMIAN VS. WARNER SPRINGS ESTATES HOMEOWNERS ASSOCIATION CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/03/2023

Plaintiff Sosi Bayramian, as Trustee of the Sosi Bayramian Revocable Inter-vivos Trust ('Plaintiff')'s demurrer to Defendant Warner Springs Estates Homeowners Association ('Defendant')'s Second Amended Answer (the 'SAA') is sustained in part and overruled in part.

California Code of Civil Procedure ('CCP') § 430.20 allows a party against whom an answer has been filed to demur on the following grounds: '(a) The answer does not state facts sufficient to constitute a defense[;] (b) The answer is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible[;] [or] (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.' Cal. Code Civ. P. § 430.20. '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). 'A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.' Khoury v. Maly's of Cal., Inc. (1993) 14 Cal. App. 4th 612, 616. Such demurrers 'are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.' Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal. App. 5th 841, 848.

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, 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. Regarding 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. 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 construes Defendant's lack of opposition as a concession of the demurrer's merits. See San Diego Rules of Court, Rule 2.1.19.B. The court will also address the demurrer's merits as to each Calendar No.: Event ID: TENTATIVE RULINGS

3004731 CASE NUMBER: CASE TITLE: BAYRAMIAN VS. WARNER SPRINGS ESTATES HOMEOWNERS 37-2023-00016294-CU-OR-NC affirmative defense in turn.

Demurrer to the First Affirmative Defense (Failure to State Cause of Action) The first affirmative defense essentially challenges the Complaint's 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 Defendant can plead in support of this defense, and the demurrer to the first affirmative defense is overruled.

Demurrer to the Second Affirmative Defense (Laches) 'The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.' Bono v. Clark (2002) 103 Cal. App. 4th 1409, 1418 (quoting Johnson v. City of Loma Linda (2000) 24 Cal. 4th 61, 68). In this case, the grounds for the second affirmative defense are not put in issue with the facts as pled in the Complaint.

As a result, the affirmative defense must be specifically pled. Since the affirmative defense is devoid of the ultimate facts, the demurrer must be sustained.

Demurrer to the Fourth Affirmative Defense (Complete Performance) Defendant's conduct has been put at issue by the Complaint. In essence, the fourth affirmative defense is an extension of Defendant's general denial. This aspect of the demurrer thus is not well taken.

However, the court agrees with Plaintiff that the fourth affirmative defense does not comply with CCP § 431.30(g)'s requirements. More specifically, CCP § 431.30(g) requires that affirmative defenses '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.' Cal. Code Civ. P. § 431.30(g). In this case, Defendant does not incorporate by reference into the fourth affirmative defense its general denial as to each cause of action. Nor does Defendant specify the cause(s) of action to which the fourth affirmative defense is/are directed. Accordingly, the demurrer is sustained.

Demurrer to the Fifth Affirmative Defense (Acts or Fault of Other Parties) The grounds for the fifth affirmative defense are not put in issue with the facts as pled in the Complaint.

As a result, the affirmative defense must be specifically pled. Since the affirmative defense is devoid of the ultimate facts concerning the acts or faults of unidentified third parties, the demurrer must be sustained. Additionally, the demurrer must be sustained because Defendant has not specified the cause(s) of action to which the fifth affirmative defense is/are directed.

Demurrer to the Sixth Affirmative Defense (Events Beyond Defendant's Control) The grounds for the sixth affirmative defense are not put in issue with the facts as pled in the Complaint.

As a result, the affirmative defense must be specifically pled. Since the affirmative defense is devoid of the ultimate facts concerning the specific events beyond Defendant's control which Defendant believes contributed in whole or in part to Plaintiff's cause(s) of action, the demurrer must be sustained.

Additionally, the demurrer must be sustained because Defendant has not specified the cause(s) of action to which the sixth affirmative defense is/are directed.

Demurrer to the Seventh Affirmative Defense (Defendant Acted Reasonably and in Good Faith) Defendant's conduct has been put at issue by the Complaint. In essence, the seventh affirmative defense is an extension of Defendant's general denial. This aspect of the demurrer thus is not well taken. However, the court agrees with Plaintiff that Defendant has not specified the specific cause(s) of Calendar No.: Event ID: TENTATIVE RULINGS

3004731 CASE NUMBER: CASE TITLE: BAYRAMIAN VS. WARNER SPRINGS ESTATES HOMEOWNERS 37-2023-00016294-CU-OR-NC action to which the seventh affirmative defense is/are directed. Accordingly, the demurrer is sustained.

Demurrer to the Eighth Affirmative Defense (Failure to Exhaust Remedies) The grounds for the eighth affirmative defense are not put at issue with the facts as pled in the Complaint. More specifically, contrary to the allegations set forth in the eighth affirmative defense, Plaintiff has not put her failure to comply with alternative dispute resolution ('ADR') requirements of the applicable contract at issue. On the contrary, the Complaint alleges that Plaintiff invoked the informal dispute resolution ('IDR') procedure twice between May 17 and June 15 2022. Defendant agreed that IDR would go forward on July 29, 2022; however, it never sent Plaintiff or her attorney the Zoom login information for the meeting and IDR thus never took place. See Complaint, ¶¶ 44-46, 91-93.

Consequently, the eighth affirmative defense must be specifically pled. Since the affirmative defense is devoid of the ultimate facts concerning Plaintiff's failure to participate in ADR pursuant to an unidentified contract, the demurrer must be sustained. Additionally, the demurrer must be sustained because Defendant has not specified the cause(s) of action to which the eighth affirmative defense is/are directed.

Demurrer to the Ninth Affirmative Defense (Plaintiff's Contributory/Comparative Negligence) 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. A review of the Complaint shows that Plaintiff did not put her level of fault at issue. Indeed, the Complaint does not assert a negligence claim. Therefore, the comparative fault defense is a new matter which must be specifically pled in the SAA. See Kenny v. Kennedy (1908) 9 Cal. App. 350, 351; Major v. R.J. Reynolds Tobacco Co. (2017) 14 Cal. App. 5th 1179, 1201; 5 Witkin, Cal. Proc. 5th Plead 1103 (2008); Weil & Brown, California Practice Guide: Civil Procedure Before Trial Ch.

6-C, ¶ 6:436 (2018) (stating that comparative fault raises new matter). Here, the ninth affirmative defense is devoid of the ultimate facts establishing the applicability of Defendant's contributory/comparative negligence theory(ies). Accordingly, the demurrer is sustained. Additionally, the demurrer must be sustained because Defendant has not specified the cause(s) of action to which the ninth affirmative defense is/are directed.

Demurrer to the Tenth Affirmative Defense (Reliance on Statutory Authority) The demurrer to the tenth affirmative defense is sustained as Defendant has failed to state facts sufficient to constitute an affirmative defense. More specifically, Defendant does not identify the specific statutory authority upon which it relied that Defendant believes bars Plaintiff's claims. Accordingly, the court must sustain the demurrer. However, the court respectfully disagrees with Plaintiff that the tenth affirmative defense does not sufficiently refer to the cause(s) of action to which it is directed. Defendant plainly alleges that 'Plaintiff is barred from asserting the claims contained in the Complaint.' See SAA, p. 4, l. 9 (emphasis added).

Demurrer to the Eleventh Affirmative Defense (Consent or Knowledge) The eleventh affirmative defense is seemingly unrelated to any pled cause of action. To this point, the grounds for this affirmative defense are not put at issue by the Complaint. As a result, the affirmative defense must be specifically pled. Since the affirmative defense is devoid of the ultimate facts, the demurrer is sustained. However, the court respectfully disagrees with Plaintiff that the eleventh affirmative defense does not sufficiently refer to the cause(s) of action to which it is directed. Defendant plainly alleges that Plaintiff 'was fully informed of all relevant facts and circumstances at all times' and 'consented to the acts and conduct of Defendant upon which the Complaint is based.' Defendant contends that Plaintiff's knowledge and consent 'acts as a complete bar to any purported right or claim herein.' See SAA, p. 4, ll. 12-16 (emphasis added).

Demurrer to the Twelfth Affirmative Defense (Punitive Damages Not Recoverable) Calendar No.: Event ID: TENTATIVE RULINGS

3004731 CASE NUMBER: CASE TITLE: BAYRAMIAN VS. WARNER SPRINGS ESTATES HOMEOWNERS 37-2023-00016294-CU-OR-NC The twelfth affirmative defense alleges that the Complaint fails to state facts sufficient to support an award of punitive damages. This affirmative defense, like the first affirmative defense, does not raise new matter but merely challenges the propriety of punitive damages that may ultimately be awarded. As such, there are no additional facts that Defendant can plead in support of this claim. Moreover, the court respectfully disagrees with Plaintiff that the twelfth affirmative defense does not sufficiently refer to the cause(s) of action to which it is directed. Defendant plainly alleges that 'the Complaint, and each and every cause of action listed therein, fails to state facts sufficient to support an award of punitive damages against Defendants.' See SAA, p. 4, ll. 19-21 (emphasis added). Accordingly, the demurrer to the twelfth affirmative defense is overruled.

Demurrer to Defendant's 'Reservation of Rights' Defense This is not an affirmative defense. To the extent that discovery reveals the existence of affirmative defenses not previously pled, Defendant certainly could seek leave of court to file an amended answer, assuming Plaintiff would not so stipulate. As a result, the demurrer is sustained without prejudice to seeking leave to amend at some future date.

In light of the foregoing, the court: (1) overrules the demurrer to the first and twelfth affirmative defenses; (2) sustains the demurrer to the second, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh affirmative defenses with leave to amend (see Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967); and (3) sustains the demurrer to Defendant's reservation of rights defense without prejudice to seeking leave to amend at some future date should discovery reveal the existence of affirmative defenses not previously pled. Defendant shall file and serve a third amended answer, if it chooses to file such a pleading, within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 15, 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.

Calendar No.: Event ID: TENTATIVE RULINGS

3004731