Judge: Elaine Lu, Case: 22STCV24062, Date: 2023-02-16 Tentative Ruling

Case Number: 22STCV24062    Hearing Date: February 16, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

            On January 2, 2020, Plaintiffs Alfonso Corona Marin, Crystal M. Cavillo, Christopher Corona, a minor by and through his guardian ad litum Crystal M. Cavillo, Aaron Corona, a minor by and through his guardian ad litum Crystal M. Cavillo, Alexander Corona, a minor by and through his guardian ad litum Crystal M. Cavillo, and Adam Corona, a minor by and through his guardian ad litum Crystal M. Cavillo (collectively “Plaintiffs”) filed the instant breach of habitability action against Defendants Mahmoud H. Saab, Sawsan M. Saab, Ali Mahmoud Saab, and Mahmoud H. Saab and Sawsun M. Saab as Trustees of the Saab Family Trust (collectively “Defendants”).  The Complaint assets six causes of action for (1) Breach of the Warranty of Habitability, (2) Negligence, (3) Breach of Quiet Enjoyment, (4) Nuisance, (5) Violation of Business and Professions Code § 17200, and (6) Trespass. 

            On September 15, 2022, Defendants filed an answer to the complaint.  On September 29, 2022, Plaintiffs filed a demurrer to Defendants’ answer.

            On November 30, 2022, during the Case Management Conference and Order to Show Cause Re: Failure to File Proof of Service, as a demurrer to an answer was filed, the Court ordered Plaintiff to file supplemental briefing distinguishing between which affirmative defenses require the pleading of new matter and which affirmative defenses do not require the pleading of new matter. (Minute Order 11/30/22.)  On December 7, 2022, Plaintiffs filed a supplemental brief.  No opposition or reply has been filed.

Legal Standard

A plaintiff may demur to a defendant’s answer within 10 days of being served with the answer (CCP § 430.40(b)) on three grounds: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; or (3) failure to state whether a contract alleged in the answer is written or oral. (CCP § 430.20).

The demurrer may be to the whole answer or to any one or more of the several defenses set up in the answer. (CCP §430.50(b).) The plaintiff may not, however, demur to part of a defense; the sufficiency of a defense must be considered as a whole. Each defense must be considered separately without regard to any other defense, and one defense does not become insufficient because inconsistent with other parts of the answer. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.)

The critical inquiry when a plaintiff demurs to an answer is whether the answer raises a defense to plaintiff’s stated cause of action. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading the complaint.  The answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384 [a general denial puts in issue the material allegations of the complaint; court was considering whether general denial put at issue new matter for a motion for summary judgment].) CCP § 431.30(g) provides that the various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” 

“Generally speaking, the determination 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.”  (South Shore Land Co. v. Petersen, supra, 226 Cal. App. 2d at 732.)  “[T]he demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.”  (Id. at 733.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).) 

Here, Plaintiffs have failed to submit any evidence indicating that Plaintiffs even attempted to meet and confer as required.  While failure to meet and confer is not a ground for denial, (CCP § 430.41(a)(4)), any future failure to meet and a confer will result in the motion being taken off calendar. 

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).)  However, this deadline to respond is extended if served by mail or electronically.  (CCP §§ 1013(a), 1010.6(a)(3)(B).)  Moreover, this deadline is automatically extended 30-days if the parties are not able to meet and confer five days before a demurrer would be due if a declaration is filed before the demurrer is due stating that the moving party attempted to timely meet and confer.  (CCP § 430.41(a)(2).)  It is within the Court’s discretion to consider an untimely demurrer.  (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) 

            Here, Defendants’ answer was filed on September 15, 2022.  The proof of service for Defendants’ answer states that it was electronically served on September 15, 2022.  Accordingly, Plaintiffs had until September 27, 2022 to timely file the instant motion.  As the instant motion was not filed and served until September 29, 2022 – two days after September 27, 2022 – the demurrer is untimely.  Moreover, Plaintiffs failed to obtain an extension by filing a declaration noting an inability to timely meet and confer. Nor did Plaintiffs timely request an extension to file the instant demurrer.  Accordingly, the Court declines to consider the untimely demurrer.

Conclusion and ORDER

            Based on the foregoing, Plaintiffs Alfonso Corona Marin, Crystal M. Cavillo, Christopher Corona, a minor by and through his guardian ad litum Crystal M. Cavillo, Aaron Corona, a minor by and through his guardian ad litum Crystal M. Cavillo, Alexander Corona, a minor by and through his guardian ad litum Crystal M. Cavillo, and Adam Corona, a minor by and through his guardian ad litum Crystal M. Cavillo’s demurrer to Defendants’ answer is OVERRULED as untimely.

            Moving Party is to give notice and file proof of service of such.

DATED: February 16, 2023                                                   ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court