Judge: Douglas W. Stern, Case: 21STCV29839, Date: 2022-09-29 Tentative Ruling
Case Number: 21STCV29839 Hearing Date: September 29, 2022 Dept: 52
Tentative Ruling:
Plaintiff Victor Alarcon moves to
strike numerous portions of defendants Christopher Alarcon and Epyon LLC’s
first amended answer.
Sham Pleading
Plaintiff moves to strike many
portions of the first amended answer under the sham pleading doctrine. “Under the sham pleading doctrine, a pleader
cannot circumvent prior admissions by the easy device of amending a
pleading without explanation.”
(Womack v. Lovell (2015) 237 Cal.App.4th 772, 787.) The “doctrine ‘cannot be mechanically
applied.’ ” [Citation.] It ‘is not intended to prevent honest
complainants from correcting erroneous allegations or prevent the correction of
ambiguous facts.’ ” (JPMorgan Chase
Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 690.)
The sham pleading doctrine does not
apply because defendants offer a sufficient explanation of their amendments. As they explained in their motion for leave
to file the first amended answer and in their opposition to this motion, the
original answer was filed jointly by all four defendants, including
co-defendants Jorge Torres and Susana Torres.
It is natural that separate defendants—especially where, as here, they have
distinct roles in the alleged events—would have different answers to the
complaint’s allegations. Rather than an
abuse of process or sham pleading, the first amended answer constitutes an
honest correction. Inconsistencies
between the initial verified answer and the first amended verified answer may,
however, be grounds for impeaching defendants’ credibility.
Affirmative Defenses
Plaintiff
moves to strike 23 affirmative defenses alleged in paragraphs 52, 53, 57,
62-64, 66-69, 71, 73, 75-79, 82, 85, 86, and 89-91 of the first amended answer.
Affirmative defenses must not be
pled as “terse legal conclusions,” but “rather … 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.” (In re
Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758,
812-13, internal quotes and citations omitted.)
The first amended answer does not allege facts supporting these 23
affirmative defenses. It merely pleads
them as terse legal conclusions.
Defendants
argue failing to allege sufficient facts for an affirmative defense is only
grounds for a demurrer, not a motion to strike.
“The name of a motion is not controlling.” (Powell v. County of Orange (2011)
197 Cal.App.4th 1573, 1577; see Civ. Code, § 3528.) Though plaintiff named this motion a motion
to strike instead of a demurrer, its substance is clear. As to the affirmative defenses, defendants
opposed this motion on a technicality rather than arguing the first amended
answer alleges sufficient facts for these defenses.
Furthermore,
several of these purported affirmative defenses are not affirmative defenses at
all. Rather than denying the plaintiff’s
allegations, affirmative defenses assert new allegations that would defeat the
plaintiff’s claims. (CCP § 431.30(b); FPI Development, Inc. v. Nakashima (1991)
231 Cal.App.3d 367, 383-385.) For
example, the 32nd and 33rd affirmative defenses are “no fraud” and “no
negligent misrepresentation.” Those are
merely denials of plaintiff’s allegations.
The 34th affirmative defense is “no punitive damages allowed.” That would be grounds for a motion to strike—not
an affirmative defense.
Disposition
Plaintiff’s motion to strike is denied as to the portions specified in paragraphs
1.a. to 1.m. of the notice of motion.
Plaintiff’s motion is granted with 15 days’ leave to amend as to the portions
specified in paragraphs 2.a. to 2.w. of the notice of motion. The court hereby strikes paragraphs 52, 53, 57, 62-64, 66-69, 71, 73,
75-79, 82, 85, 86, and 89-91 of the first amended answer by defendants
Christopher Alarcon and Epyon LLC.