Judge: Gail Killefer, Case: 22STCV11122, Date: 2022-10-26 Tentative Ruling

Case Number: 22STCV11122    Hearing Date: October 26, 2022    Dept: 37

HEARING DATE:                 October 26, 2022    

CASE NUMBER:                  22STCV11122

CASE NAME:                        Robert Gentino, Trustee of the BN Family Trust, et al. v. Bob Termechi, et al. 

MOVING PARTY:                Plaintiff, Robert Gentino, Trustee of the BN Family Trust Dated June 5, 2000

OPPOSING PARTIES:          Defendant, Bizhan Yaghoobia

TRIAL DATE:                        Not Set

PROOF OF SERVICE:          OK

MOTION:                               Plaintiff’s Demurrer to Defendant’s Answer to the Complaint [Untimely Filed as Demurrer to Answer was due before May 19, 2022]

OPPOSITION:                       June 23, 2022

REPLY:                                  None filed as of October 25, 2022.

TENTATIVE:                         Plaintiff’s demurrer is sustained. Defendant is granted 20 days leave to file an amended answer. Plaintiff is to give notice. 

Background

This action arises out of an ownership dispute in real property located at 1901 E. Carson Street, Long Beach, California (the “Subject Property”). Plaintiff, successor trustee to the BN Family Trust dated June 5, 2000 (“Plaintiff”), settled by Behrouz Nopavar (“Nopavar”) on June 5, 2000, claims ownership to the Subject Property. Defendants, Bob Termechi (“Termechi”) and Bizhan Yaghoobia (“Yaghoobia”) also claim ownership in the Subject Property.

Plaintiff’s Complaint alleges Termechi falsely identified a Grant Deed to the Subject Property as a bona fide gift and obtained Nopavar’s signature after Nopavar and Yaghoobia had jointly purchased the Subject Property on May 7, 2008. Plaintiff claims that only three days after Nopavar passed away on September 28, 2014, Termechi recorded the Grant Deed to the Subject Property on October 1, 2014, allegedly knowing that Nopavar could no longer challenge the false ownership claims.

On August 24, 2018, Plaintiff and Termechi signed a Settlement agreement (“Settlement”) to resolve the dispute, to confer standing to Plaintiff to seek a partition of the Subject Property. The Settlement erroneously conferred an interest in Termechi’s sale proceeds from the Subject Property, as opposed to an interest in Termechi’s recorded property interest. Plaintiff’s Complaint also alleges Yaghoobia interfered with Plaintiff’s ownership in the Subject Property without Plaintiff’s consent by distributing funds from the trust to Yaghoobia and Termechi, which damaged Plaintiff.

Plaintiff’s Complaint alleges the following causes of action: (1) reformation of contract against Termechi, (2) partition against all Defendants, (3) breach of constructive trust against Yaghoobia, and (4) accounting against Yaghoobia.

Plaintiff now demurs to Yaghoobia’s answer on the grounds that each affirmative defense fails to sufficiently plead facts in support. Yaghoobia opposes the demurrer.

A party has 10 days after service of the answer to demur to an answer to the complaint or cross-complaint.  (CCP § 430.40(b).) The court has discretion to consider late demurrers.  (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Here, Plaintiff’s demurrer to the answer was filed on May 23, 2022, more than ten days after the answer was served and filed on May 9, 2022. As such, Plaintiff’s demurrer is untimely. However, the court exercises its discretion here to consider Plaintiff’s demurrer.

DEMURRER

I.                   Meet and Confer Efforts

Plaintiff submits the declaration of its attorney, Robert Gentino (“Gentino”) to demonstrate that it has fulfilled its statutory meet and confer obligations pursuant to CCP § 430.41 prior to filing the instant motion. Gentino attests that prior to filing the demurrer, he called and “left messages for [Defendant’s counsel] on May 13 and 19, 2022 in an effort to meet and confer” and Defendant’s counsel “never returned my call.” (Demurrer, 2.)

The Gentino Declaration is insufficient for purposes of CCP § 430.41 as the declaration shows the parties have not met and conferred around the issues. However, as failure to meet and confer is not grounds to overrule a demurrer, the court continues with the merits of the arguments.

II.                Legal Standard

A party against whom an answer has been filed may object by demurrer. Unlike a demurrer to a complaint or cross-complaint, a demurrer to an answer is limited to three grounds: 

(a) The answer does not state facts sufficient to constitute a defense; 

(b) The answer is uncertain; or 

(c) Where the answer pleads a contract, it cannot be ascertained from the answer

      whether the contract is written or oral. 

(CCP § 430.20.)   

A general demurrer may be made on the ground that an answer does not state facts sufficient to constitute a defense.  (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880; CCP § 430.20.)  “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 (1964) 226 Cal.App.2d 725, 732; In re Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 813 (Quantification) [“affirmative defenses cannot be pled as mere legal conclusions, but must instead be alleged with as much factual detail as the allegations of a complaint.”].)  

Affirmative defenses are pled based upon facts demonstrating that no cause of action exists, notwithstanding the truth of the complaint’s allegations.  (Walsh v. W. Valley Mission Cmty. College Dist. (1998) 66 Cal.App.4th 1532, 1542 n.3.)  “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff.  Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as new matter.  Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not new matter, but only a traverse.”  (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725 (State Farm).) 

The same pleading of ultimate facts in support of such new matter, rather than legal conclusions, is required as in pleading the complaint.  As a general rule, the answer must allege facts constituting the affirmative defense in the same manner as a complaint must do for a cause of action.  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

III.             Analysis

Plaintiff argues that each of Defendant’s fifteen affirmative defenses fail as a matter of law because each “consist of legal conclusions” which does not state facts in support and thus fails to state a defense. (Demurrer, 1-2.) Plaintiff relies on FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 (FPI) in support of its motion. However, Plaintiff also does not specifically explain how any of Defendant’s affirmative defenses are insufficiently pled but rather, argues that all of them fail to conform to the standard in FPI.

In opposition, Defendant contends its answer “has denied in detail the substantive and numerous factual allegations in the complaint, and the affirmative defenses incorporate such denials in alleging the defenses.” (Opposition, 2.)  A review of the Answer filed, however, shows the affirmative defenses are not pled to incorporate the earlier denials. Defendant further contends that any “claimed defect can be easily cured by stating facts in support of the defenses explicitly, and the defendant requests to do so if the demurrer is sustained.” (Opp., 3.)

First, Plaintiff’s reliance on FPI is misplaced. Although FPI does articulate the general standard that affirmative defenses must be pled with sufficient particularity like a cause of action, FPI considered whether affirmative defenses were sufficiently pled in the context of a motion for summary judgment. Thus, FPI does not support Plaintiff’s argument that each of Defendant’s affirmative defenses is deficient.

Second, the court otherwise agrees with Plaintiff. The court has reviewed Defendant’s answer to the Complaint. Based on this review, the court agrees with Plaintiff regarding the lack of detail or factual allegations. The fifteen affirmative defenses consist of legal conclusions without supporting facts. For example, affirmative defenses 5-7 merely say that the Complaint and each cause of action “is” barred by several statutes of limitation without any other facts demonstrating why these affirmative defenses apply. Thus, Defendant’s affirmative defenses are insufficiently pled because Defendant was required to state facts in the same manner as a complaint must do for a cause of action.

For these reasons, Plaintiff’s demurrer is sustained. Defendant is granted 20 days leave to file an amended answer. Plaintiff is to give notice. 

Conclusion

Plaintiff’s demurrer is sustained. Defendant is granted 20 days leave to file an amended answer. Plaintiff is to give notice.