Judge Daniel M. Crowley, Case Number: 23STCV19294, Date: 2024-03-14 Tentative Ruling

Plaintiffs David Marvisi’s, Belgrave Portfolio LLC’s, and 2136 Deerfield Property, LLC’s demurrer to Defendant Abrahim Benelyahu’s answer to Plaintiffs’ first amended complaint is sustained with 20 days leave to amend as to Defendant’s 2nd through 10th affirmative defenses.

Plaintiffs David Marvisi (“Marvisi”), Belgrave Portfolio LLC (“Belgrave”), and 2136 Deerfield Property, LLC (“2136 Deerfield”) (collectively, “Plaintiffs”) demur to Defendant Abrahim Benelyahu’s (“Benelyahu”) (“Defendant”) answer (“Answer”) to Plaintiffs’ first amended complaint (“FAC”). (Notice Demurrer, pgs. 1-2.)

Plaintiffs filed their initial complaint on August 14, 2023. Plaintiffs filed the operative FAC against Defendant alleging five causes of action: (1) breach of oral contract; (2) fraud; (3) unlawful business practices; (4) invasion of privacy; and (5) declaratory relief. Defendant filed his Answer to the FAC on January 26, 2024.

Plaintiffs filed the instant demurrer on February 13, 2024. Defendant filed his untimely opposition on March 11, 2024. As of the date of this hearing no reply has been filed.

C.C.P. §430.41(a) provides in part, “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.)

Plaintiffs’ counsel declares she contacted Defendant’s counsel via email on February 1, 2024, in an attempt to meet and confer, and requested a response by February 5, 2024. (Decl. of Landver ¶3.) Plaintiff’s counsel declares Defendant’s counsel fail to respond to her meet and confer request. (Decl. of Landver ¶4.) Plaintiff’s counsel’s declaration is insufficient under C.C.P. §430.41(a) because she did not attempt to meet and confer in person, by telephone, or by video conference with Defendant’s counsel.

However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Therefore, the Court will consider Plaintiffs’ 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].)

Plaintiffs demur to Defendant’s Answer on the basis the second through tenth affirmative defenses are each and all conclusory, fail to mention facts, are each and all boilerplate, and each and all allege various purported affirmative defense with no explanation, factual or otherwise. (Demurrer, pg. 2.)

Plaintiffs’ demurrer to Defendant’s 2nd through 10th affirmative defenses to the FAC is sustained because they contain allegations proffered in the form of brief legal conclusions rather than as facts. (FPI Development, Inc., 231 Cal.App.3d at pgs. 382-386.)

Accordingly, Plaintiffs’ demurrer to Defendant’s 2nd through 10th affirmative defenses to the FAC is sustained with 20 days leave to amend.

Plaintiffs’ demurrer to Defendant’s 2nd through 10th affirmative defenses to the FAC is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court