Judge: David A. Rosen, Case: 22GDCV00251, Date: 2022-08-12 Tentative Ruling
Case Number: 22GDCV00251 Hearing Date: August 12, 2022 Dept: E
Hearing Date: 08/12/2022 – 10:00am
Case No. 22GDCV00251
Trial Date: UNSET
Case Name: SANDA OSWALD v. JOY SANTOS, MEL CAOILI, and DOES 1-5
TENTATIVE
RULING – PLAINTIFF’S DEMURRER TO ANSWER
Moving Party: Plaintiff, Sanda
Oswald
Responding Party: No
Opposition
No
Opposition or Reply
Proof of Service Timely Filed (CRC
Rule 3.1300(c)): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: NO –
Plaintiff alleged service on Defendants Joy Santos and Mel Caoili at 432 Riverside
Dr., Glendale, CA 91204. On eCourt, both Defendants are listed with an address
of 432 Riverdale Drive, Glendale, CA 91204.
RELIEF REQUESTED
Plaintiff, Sanda Oswald, demurs to the 1st, 2nd, 3rd,
4th, 5th, 6th, 7th, 8th,
9th, 10th, 11th, 12th, 13th,
14th, and 15th affirmative defenses in Defendant’s answer
on grounds of failure to state facts sufficient to constitute a defense and all
affirmative defenses are uncertain.
BACKGROUND
Plaintiff alleges that it entered into a written contract with Defendants for
the rental of real property located at 432 Riverside Dr., Glendale, CA 91204 for
a monthly rental rate of $2,050.00 for a period of one year, set to begin on
February 1, 2019. Plaintiff alleges that on or around February 2022 Defendants
provided Plaintiff with a notice that on March 2022 Defendants would be raising
rent from $2,050.00 to $2,150.00. Plaintiff alleges that this rent increase violated
the Los Angeles County Updated COVID-19 Tenant Protections Resolution Phase I
which was effective from February 1, 2022 – May 31, 2022.
Plaintiff further alleges that on or around March 22,
2022, Defendant Joy Santos sent Plaintiff a text message stating in part, “Hi
Sanda, I noticed your excessive use of the laundry machine. We have tried not
to raise the rent, but even with the $100 a month increase that just started
this month since your tenancy isn't enough to cover the increase in the water
bill. I will ask you to limit your laundry use."
Plaintiff alleges that on or around March 26, 2022,
Defendants texted Plaintiff stating in part, “It is now midnight and the washer
and or dryer just completed its cycle. The noise coming from the machine at this
late is causing a nuisance and not allowing us to rest. Please use the machine
between 8am and 8pm only…. Thank you.”
In general terms, Plaintiff’s Complaint appears to be
premised on the following allegations, “Landlords may not terminate a tenancy,
refuse to renew a tenancy, or cause a tenant to involuntarily move out. Here,
because Defendants engaged in an illegal rent increase in which in February
2022 the law forbids such notice to be served, and because of the text messages
demanded that Plaintiff limit her laundry usage constitutes Defendants acts of
breaching the contract, breach of quiet and enjoyment, and unlawfully
influencing Plaintiff to vacate. In violation of the Los Angeles Covid-19
Tenant Protections Resolution Was Signed And Went Into Effect On January 25,
2022.” (Compl. ¶13.)
Plaintiff’s Complaint alleges the following causes of
action: (1) Breach of Contract, (2) Breach of Covenant of Good Faith and Fair
Dealing, (3) Breach of Covenant of Quiet Enjoyment of the Premises, (4) Nuisance
[Civil Code §3479], (5) Intentional Infliction of Emotional Distress, (6)
Negligent Infliction of Emotional Distress, (7) Negligence, and (8)
Constructive Eviction.
On 07/05/2022, Defendants filed an answer to the
Complaint. The Answer is a Form Answer, and Defendants checked the box in Paragraph
4 titled “Affirmative Defenses,” and alleged that Plaintiff is not entitled to
recover anything because the Updated COVID-19 Tenant Protections Phase 1 rent
freeze applied only to unincorporated areas of LA County, and Glendale is an
incorporated city and its ordinance on rent freeze expired on October 31, 2020.
Defendants also alleges that due to the rising cost of the water bill, they
requested Plaintiff to limit usage of the machines, and this text message did
not constitute harassment. Defendants further state that the washer and dryer
were not included in the tenancy contract and could have been removed at any
time because of its abuse by the Plaintiff, but the Plaintiff was merely asked
to limit its use and operate the machine at a more reasonable time. Further,
Defendants allege that Plaintiff appeared to have been using the laundry
machines for business purposes based on the photos attached to Defendants’
answer that show ticket numbers on the clothing[s] that hung on Plaintiff’s
closet which Plaintiff requested repeatedly to be fixed due to damage the
weight of these clothes placed on the closet bar holder.
PROCEDURAL
Meet and Confer
“Before
filing a demurrer pursuant to this chapter, the demurring party shall meet and
confer in person or by telephone 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.” (CCP
§430.41(a).)
Plaintiff filed a meet and confer declaration alleging
to have met and conferred via telephone and that the parties did not reach an
agreement. (Decl. Oswald ¶2.)
Timeliness
“A
party who has filed a complaint or cross-complaint may, within 10 days after
service of the answer to his pleading, demur to the answer.” (CCP §430.40(b).)
Here, the Answer was allegedly served by mail on July
5, 2022. The demurrer to the answer was served by mail on July 11, 2022, and is
thus timely. However, as noted previously, the demurrer was served on the wrong
address.
LEGAL STANDARD – DEMURRER
Under
CCP §430.20, a party against whom an answer has been filed may object, by
demurrer as provided in Section 430.30, to the answer upon any one or more of
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.
(c) Where
the answer pleads a contract, it cannot be ascertained from the answer whether
the contract is written or oral.
The Court of Appeal construed a demurrer to an answer in the
case of South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725,
732-734.
Generally
speaking, the determination of whether an Answer states a defense is governed
by the same principles which are applicable in determining if a Complaint
states a cause of action. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, §§
1331, 1336, pp. 488, 492.)
These well-defined
principles include the following: “A demurrer reaches only to the contents of
the pleading and such matters as may be considered under the doctrine of
judicial notice” (Weil v. Barthel, 45 Cal.2d 835, 837; County
of Los Angeles v. Security First Nat. Bank, 84 Cal.App.2d 575, 579;
The allegations of the pleading demurred to must be regarded as true (Stigall
v. City of Taft, 58 Cal.2d 565, 567-568; Hopper v. Hopper, 224
Cal.App.2d 446, 447; a demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading (Marin v.
Jacuzzi, 224 Cal.App.2d 549, 552; Howard v. City of Los
Angeles 143 Cal.App.2d 195, 197, or the construction placed on an
instrument pleaded therein (Griffin v. County of Colusa, 44
Cal.App.2d 915, 918, or facts impossible in law (Griffin v. County of
Colusa, supra, p. 918), or allegations contrary to facts of which a
court may take judicial knowledge. (Chavez v. Times-Mirror Co., 185
Cal. 20, 23; Griffin v. County of Colusa, supra, p. 918; American
Distilling Co. v. Johnson, 132 Cal.App.2d 73, 77; Livermore v.
Beal, 18 Cal.App.2d 535, 540.) A basic principle also applicable to
general demurrers holds all that is necessary against a general demurrer is, upon
a consideration of all the facts stated, it appears that the party whose
pleading is attacked by such a demurrer is entitled to any relief
at the hands of the court against his adversary, notwithstanding the facts may
not be clearly stated, or may be intermingled with a statement of other facts
irrelevant to the cause of action or defense shown, or although the plaintiff,
in his complaint, or the defendant, in his answer, may demand relief to which
he is not entitled under the facts alleged. (See Gressley v. Williams, 193
Cal.App.2d 636, 639.)
There are,
however, some applicable differences between a demurrer to a Complaint and one
to an Answer. In the case of a demurrer to the answer, as distinguished from a
demurrer to the complaint, the defect in question need not appear on the face
of the answer. The determination of the sufficiency of the answer requires
an examination of the complaint because its adequacy is with reference to the
complaint it purports to answer. (Chadbourn, Grossman, Van Alstyne, Cal.
Pleading, § 1334, pp. 490, 491; Miller & Lux, Inc. v. San Joaquin
Light & Power Corp., 120 Cal.App. 589, 600.) This requirement,
however, does not mean that the allegations of the complaint, if denied, are to
be taken as true, the rule being that the demurrer to the answer admits all
issuable facts pleaded therein and eliminates all allegations of the complaint
denied by the answer. (Miller & Lux, Inc. v. San Joaquin Light &
Power Corp., supra, p. 600; Sheward v. Citizens' Water Co., 90
Cal. 635, 639; Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, p.
489.) Another rule, particularly applicable to the case of a demurrer to the
answer, is that each so-called defense must be considered separately without
regard to any other defense. (Code Civ. Proc., § 441; Miller & Lux,
Inc. v. San Joaquin Light & Power Corp., supra, p. 601; Chadbourn,
Grossman, Van Alstyne, Cal. Pleading, § 1335, pp. 490, 491.) Accordingly, a
“separately stated defense or counterclaim which is sufficient in form and
substance when viewed in isolation does not become insufficient when, upon
looking at the answer as a whole, that defense or counterclaim appears
inconsistent with or repugnant to other parts of the answer.” (Chadbourn,
Grossman, Van Alstyne, Cal. Pleading, § 1335, pp. 490, 491; Miller
& Lux, Inc. v. San Joaquin Light & Power Corp., supra, p.
601; Banta v. Siller, 121 Cal. 414, 418; Buhne v.
Corbett, 43 Cal. 264, 269; Southern Glass Co. v. Beverly
Dairies, Ltd., 7 Cal.App.2d 451, 454.) Therefore, if one of the
defenses or counterclaims is free from the objections urged by demurrer, then a
demurrer to the entire answer must be overruled. (Eich v. Greeley, 112
Cal. 171, 173-174; Ramsey v. Flournoy, 58 Cal. 260, 261.) Finally,
since a defendant is entitled to plead inconsistent defenses, where one
separate answer denies all of the allegations of the plaintiff's complaint, the
plaintiff is not excused from making proof of the material facts because of
admissions of some or all of them found in other and separate answers of the
defendant. (Southern Glass Co. v. Beverly Dairies, Ltd., supra, p.
454; McDonald v. Southern Cal.Ry. Co., 101 Cal. 206, 212-
213.)
South
Shore Land Co. v. Petersen
(1964) 226 Cal. App. 2d 725, 732–34.
ANALYSIS
Plaintiff
attempts to call to the Court’s attention alleged problems with specific
affirmative defenses such as the second affirmative defense and the seventh
affirmative defense. Plaintiff argues that the second affirmative defense is a
conclusion of law without any factual basis, and Plaintiff argues that the
seventh affirmative defense is a boiler-plate defense with no factual basis.
Plaintiff also argues that the first, third, fourth, fifth, sixth, eighth,
ninth, tenth, eleventh, twelfth and 13th affirmative defenses are
conclusions and not statements of fact.
As a preliminary matter, Plaintiff’s discussion
referring to specific enumerated affirmative defenses is unclear at best. Defendants
did not enumerate a single affirmative defense in their Answer; Defendants simply
explained why they believed they were not liable in Paragraph 4, labeled
“Affirmative Defenses,” and Paragraph 5, labeled “Other.”
Further, as Plaintiff appears to be arguing that for all
the affirmative defenses, Defendant stated terse conclusions of law without any
factual basis, the Court does not find this argument availing.
The
motion primarily argues that the affirmative defenses are not alleged with
factual particularity but instead in legal conclusions, in reliance on FPI
Development, Inc. v. Nakashima (1993) 231 Cal.App.3d 367, in which the
court of appeal affirmed the granting of a motion for summary judgment, in part
on the ground that the conclusory affirmative defenses stated in defendants’
answer were insufficient to place facts in issue.
“All of the allegations are proffered in the form of terse
legal conclusions, rather than as facts "averred as
carefully and with as much
detail as the facts which constitute the cause of action and
are alleged in the
complaint." (See Pomeroy, Code Remedies, supra, § 563,
at p. 917.) The only
affirmative defenses that are mentioned in the summary
judgment proceedings,
fraud in the inducement and failure of consideration, are
not well pled,
consisting of legal conclusions, and would not have survived
a demurrer.
(See e.g.,
Metropolis etc. Sav. Bank v. Monnier (1915) 169
(Metropolis); Riegel v. Wollenshlager (1920) 49 Cal.App. 300,
301-302.)”
FPI, at 384.
Plaintiff’s
reliance on FPI is misplaced because the opinion stands for the generic
proposition that mere allegations in a pleading are insufficient to withstand
summary judgment. It does not stand for the proposition of a heightened
pleading standard for affirmative defenses in an answer.
Here,
Defendants have asserted facts that can form the basis of their defense.
Defendants asserted that the rent freeze did not apply to Glendale, that the
washer and dryer was not included in the tenancy, and that the laundry machines
were used for an improper purpose.
TENTATIVE RULING
Plaintiff’s
demurrer to Defendants’ Answers is OVERRULED. Plaintiff did not show adequate
proof of service as Plaintiff served the motion at the wrong address. No
Opposition was filed. Further,
Defendants’ Answer asserts an adequate factual basis as to why Defendants are allegedly
not liable herein.