Judge: Deborah C. Servino, Case: 30-2022-01242166, Date: 2022-08-19 Tentative Ruling

Defendants/Cross-Complainants Ernesto Martine Ure’s and Jani Hall Nomad’s demurrer to Plaintiff/Cross-Defendant Tennis Villas at Monarch Beach Homeowners Association’s Answer to the First Amended Cross-Complaint (“FACC”) is sustained with 15 days leave to amend.

Cross-Complainants’ request for judicial notice of the First Amended Cross-Complaint is denied.  It is unnecessary to ask the court to take judicial notice of materials previously filed in this case.  “[A]ll that is necessary is to call the court’s attention to such papers.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) 

An answer to a complaint shall 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. (Code Civ. Proc., § 431.30, subd. (b) [emphasis added].)  The same pleading of ultimate facts rather than legal conclusions is required in pleading an answer as in pleading a complaint.  (See FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384 [stating rule that answer must allege facts “averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”].) 

The distinction between which defenses are “new matters” (“affirmative defenses”) and which are simply a denial or contradiction of the essential allegations of the complaint is important here, as this constitutes the crux of the parties’ arguments.  Only new matters must be specially pleaded, containing the ultimate facts sufficient to prove the defense.  (See FPI Development, Inc. v. Nakashimi, supra, 231 Cal. App. 3d at p. 384.)  A new matter is a matter alleged for the first time in the answer, creating a new issue in the case not presented by the complaint.  (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543; Coles v. Soulsby (1862) 21 Cal. 47, 50 [“new matter” is “that matter which the defendant must affirmatively establish.”].)  

Here, Cross-Complainants demur to the second through seventh affirmative defenses which are estoppel, unclean hands, standing, privilege, statute of limitations, and “other.” The seventh affirmative defense is not actually an affirmative defense.  Rather, it is a reservation of the right to assert additional affirmative defenses in the event that it is appropriate.  The second through sixth are affirmative defenses that require facts to be alleged.  The demurrer is sustained with 15 days leave to amend.

Cross-Complainants shall give notice of ruling.