Judge Daniel M. Crowley, Case Number: 23STCV16928, Date: 2024-03-06 Tentative Ruling

Plaintiff Eastern Funding, LLC’s, unopposed demurrer to Defendants 1553 LLC’s, Jason Arrow’s, and Jamie Lynn Arrow’s Answer is sustained in its entirety with 20 days leave to amend.

Plaintiff Eastern Funding, LLC (“Eastern Funding”) (“Plaintiff”) demurs unopposed to Defendants 1553 LLC’s (“1553”), Jason Arrow’s (“Jason”), and Jamie Lynn Arrow’s (“Jamie”) answer (“Answer”). (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.20(a), (b).) Plaintiff also moves to strike portions of the Answer. (Notice of MTS, pgs. 1-2.)

Plaintiff filed the operative Complaint against Defendants on July 19, 2023, alleging two causes of action: (1) breach of secured promissory note and modifications; and (2) breach of guarantees. (See Complaint.)

On October 17, 2023, Plaintiff filed the instant demurrer and motion to strike. As of the date of this hearing no opposition has been filed.

Plaintiff demurs on the basis that Defendants filed an unverified general denial to a verified complaint and their Answer is therefore improper and must be stricken. (Demurrer, pg. 3; C.C.P. §§431.30(d), (f), 430.20(a).) Plaintiff also demurs to the 2nd, 3rd, 4th, 5th, and 6th affirmative defenses on the basis they fail to state facts sufficient to constitute defenses and are uncertain, ambiguous, and unintelligible. (Demurrer, pgs. 3-4; C.C.P. §§430.20(a), (b).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Plaintiff’s counsel’s declaration states that he never received an Answer from Defendants and was surprised to learn there was an Answer filed with the Court without a proof of service. (Decl. of Alper ¶¶2, 3.) Plaintiff’s counsel’s declaration states he immediately sent an email to counsel for Defendants, Parisa Fishback, advising her of the issues and deficiencies and to meet and confer. (Decl. of Alper ¶7, Exh. 1.) Plaintiff’s counsel declares after not receiving a response to his email, the next day he called Defendants’ counsel and left a voicemail. (Decl. of Alper ¶8.) Plaintiff’s counsel declares he finally received a response from Defendants’ counsel indicating that she lost contact with her clients and therefore she cannot take any further action at this time. (Decl. of Alper ¶10, Exh. 2.) Plaintiff’s counsel’s declaration is proper. Therefore, the Court will consider the instant demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

A demurrer to an answer is appropriate when the answer contains allegations proffered in the form of brief legal conclusions rather than as facts. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-386 [affirmative defenses of fraud in the inducement and failure of consideration, consisting of “terse” legal conclusions rather than facts, were not well pled, and would not have survived a demurrer].)

In addition, the affirmative defenses in an answer are limited to “a statement of any new matter constituting a defense.” (C.C.P. §431.30(b).) The “new matter” should be an independent reason which a defendant claims should bar plaintiff from recovery, even if all of the allegations in the complaint were true. (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546 [claim that plaintiff failed to perform is not an affirmative defense].)

C.C.P. §446(a) provides, “[w]hen the complaint is verified, the answer shall be verified.”

Here, the Complaint is a verified Complaint, and it is not within a limited jurisdiction Court. Defendants’ Answer is not verified. Therefore, as a matter of law Defendants’ pleading is an improper Answer, and a demurrer must be sustained.

C.C.P §431.30(d) provides, “[i]f the complaint is subject to Article 2 (commencing with section 90) of Chapter 5.1 of Title I of Part 1 or is not verified, a general denial is sufficient but only puts in issue the material allegations of the complaint. If the complaint is verified, unless the complaint is subject to Article 2 (commencing with section 90) of Chapter 5.1 of Title I of Part 1, the denial of the allegations shall be made positively or according to the information and belief of the defendant.”

Pursuant to C.C.P. §431.30(f), “the denials of the allegations controverted may be stated by reference to specific paragraphs or parts of the complaint; or by express admission of certain allegations of the complaint with a general denial of all of the allegations not so admitted; or by denial of certain allegations upon information and belief, or for lack of sufficient information and belief, with a general denial of all allegations not so denied or expressly admitted.”

Here, Defendants’ Answer is nothing more than a form general denial. Defendants are required to answer each paragraph positively and specifically. Defendants have failed and refused to do that. Therefore, the Demurrer to Defendants’ Answer is sustained with 20 days leave to amend.

Defendants’ 2nd through 6th affirmative defenses fail to state facts sufficient to constitute a defense, and do not contain any “new matter.” (C.C.P. §430.20(a).) Boilerplate conclusions are not allowed as a matter of law; each affirmative defense must plead ultimate facts establishing the defense in the same manner. (See Greiss v. State Investment Etc. Co. (1893) 98 Cal. 241, 244; California Packing Corp. v. Larsen (1921) 187 Cal. 610, 612.) If there are no facts pled as to any of the affirmative defenses, they must be stricken. (FPI Development, Inc., 231 Cal.App.3d at pgs. 382-386.)

Accordingly, Plaintiff’s demurrer to Defendants’ 2nd through 6th affirmative defenses in their Answer is sustained with 20 days leave to amend.

Plaintiff’s unopposed demurrer to Defendants’ Answer is sustained in its entirety with 20 days leave to amend.

In light of the Court’s ruling on Plaintiff’s demurrer, Plaintiff’s motion to strike is denied as moot.

Hon. Daniel M. Crowley

Judge of the Superior Court