Judge Cynthia A Freeland, Case Number: 37-2023-00045124-CU-FR-NC, Date: 2024-04-19 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00045124-CU-FR-NC, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 18, 2024

04/19/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Fraud Demurrer / Motion to Strike 37-2023-00045124-CU-FR-NC RICHARDS VS FREEMAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 02/07/2024

Plaintiff Olive M. Richards ('Plaintiff')'s motion to strike Defendant Alan S. Freeman ('Defendant')'s Answer is granted in part and denied in part.

California Code of Civil Procedure ('CCP') � 436 provides that '[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' Cal. Code Civ. P. �� 436(a)-(b). In ruling on a motion to strike, courts do not read allegations in isolation.

See Perkins v. Sup. Ct. (1981) 117 Cal. App. 3d 1, 6. 'In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.' Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. The grounds for a motion to strike must appear on the face of the challenged pleading or any matter of which the court is required to take judicial notice. See Cal. Code Civ. P. � 437(a).

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.

As an initial matter, the court denies Defendant's requests that the court: (1) dismiss the Complaint with prejudice; (2) transfer venue to Ventura County Superior Court; (3) issue a finding that Plaintiff is a vexatious litigant under CCP � 391(b)(2); and (4) impose monetary sanctions against Plaintiff. An opposition to a motion to strike is not the proper procedural vehicle for obtaining such relief. Indeed, as it relates to challenges to venue, a defendant waives the issue of improper venue under CCP � 396(b) by filing an answer without also filing a separate motion for change of venue. See Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal. App. 3d 811, 819-820. The court now will address each challenged affirmative defense in turn.

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3090410 CASE NUMBER: CASE TITLE: RICHARDS VS FREEMAN [IMAGED] 37-2023-00045124-CU-FR-NC First Affirmative Defense (Failure to State a 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 motion to strike the first affirmative defense is denied.

Second Affirmative Defense (Statute of Limitations) In pleading the statute of limitations, 'it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section ___ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure.' Cal. Code Civ. P. � 458. A pleading that does not specify both the applicable statute and subdivision 'raise[s] no issue and present[s] no defense.' Davenport v. Stratton (1944) 24 Cal. 2d 232, 246-247. In this case, the second affirmative defense states that 'each and every cause of action in the Complaint is barred in whole or in part by the applicable statutes of limitations, whether it be Code of Civil Procedure Sections 335.1, 338, 340.8, 913 or 945.6, or otherwise, or any other statute of limitation or statutory time bar that may be deemed applicable to Olive M. Richards' claims herein.' The second affirmative defense is deficient because it fails to: (1) specify the particular subdivisions of CCP �� 335.1, 338, 340.8, 913, and/or 945.6 that are applicable to the defense, and (2) indicate which particular section(s) and subdivision(s) apply to each of the five causes of action set forth in the Complaint.

Additionally, the second affirmative defense is vague and uncertain to the extent Defendant contends that other unidentified statutes of limitations may apply to Plaintiff's claims. Accordingly, the motion to strike the second affirmative defense is granted.

Third 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 third affirmative defense are not put in issue with the facts as pled in the Complaint. As a result, the third affirmative defense must be specifically pled. Since the third affirmative defense is devoid of the ultimate facts, the motion to strike must be granted.

Fourth Affirmative Defense (Waiver) The grounds for this affirmative defense are not put in issue with the 'facts' as pled in the Complaint and therefore must be specifically pled. However, the defense is devoid of the ultimate facts establishing that Plaintiff has waived her right to pursue her claims against Defendant. More specifically, the defense fails to specifically identify the 'acts, conduct and omissions' by Plaintiff that Defendant believes gives rise to a waiver defense. Accordingly, the motion to strike the fourth affirmative defense is granted.

Fifth Affirmative Defense (Unclean Hands) The ground for this affirmative defense is not put in issue with the 'facts' as pled in the Complaint and therefore must be specifically pled. 'The 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. The doctrine of unclean hands, which is available in legal and equitable proceedings, 'is an equitable rationale for refusing a plaintiff relief where the principles of fairness dictate that the plaintiff should not recover[.]' Ibid. To establish unclean hands, there must be: Calendar No.: Event ID: TENTATIVE RULINGS

3090410 CASE NUMBER: CASE TITLE: RICHARDS VS FREEMAN [IMAGED] 37-2023-00045124-CU-FR-NC (1) improper conduct that is part of the same transaction that is a cause of action before the court, and (2) the party invoking the defense must have suffered some direct prejudice.

The fifth affirmative defense is devoid of the ultimate facts establishing an unclean hands defense. The defense fails to state with the requisite specificity how, exactly, Plaintiff has come to court with unclean hands. Alleging generally that Plaintiff engaged in 'unreasonable conduct', without more, is insufficient.

Accordingly, the court grants the motion to strike the fifth affirmative defense.

Sixth (Lack of Subject Matter Jurisdiction), Seventh (Res Judicata) and Eighth (Incorrect Venue) Affirmative Defenses Subject matter jurisdiction, venue, and the issues that arose in the parties' prior dissolution proceeding have been put at issue by the Complaint. Defendant has pled the ultimate facts sufficient to constitute affirmative defenses. Consequently, the motion to strike the sixth, seventh, and eighth affirmative defenses is denied.

Ninth Affirmative Defense (No Willful or Malicious Act Upon Which Punitive Damages are Proper) The ninth affirmative defense alleges that the Complaint fails to state facts sufficient to support an award of punitive damages, namely that Plaintiff has failed to plead that Defendant engaged in willful or malicious conduct. 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. Accordingly, the court denies the motion to strike the ninth affirmative defense.

Tenth Affirmative Defense (Plaintiff is a Vexatious Litigant) This is not an affirmative defense. Moreover, Defendant asks this court to deem Plaintiff a vexatious litigant under CCP � 391(b)(2). However, Defendant cannot seek such relief by way of his affirmative defenses. See Cal. Code Civ. P. � 431.30(c). Accordingly, the court grants the motion to strike the tenth affirmative defense.

In light of the foregoing, the court: (1) grants the motion to strike the second, third, fourth, and fifth affirmative defenses with leave to amend (see Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967); (2) grants the motion to strike the tenth affirmative defense without leave to amend; and (3) denies the motion to strike the first, sixth, seventh, eighth, and ninth affirmative defenses. Defendant shall file and serve a first amended answer, if he 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, April 19, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 19, 2024. 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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