Judge: Gail Killefer, Case: 24STCV28701, Date: 2025-04-22 Tentative Ruling

Case Number: 24STCV28701    Hearing Date: April 22, 2025    Dept: 37

CASE NUMBER:                   24STCV28701

CASE NAME:                        Teresa Bergen v. Paul Schon, et al.

MOVING PARTY:                 Plaintiff Teresa Bergren

OPPOSING PARTY:             Defendants against Paul Schon, St Realty, Inc.; STG 644 N Hobart GP, LLC; Schon Investments, LLC; Tepler Investments LLC dba Multi OD, LLC; the hers and devisees of Artem Tepler

TRIAL DATE:                        Not set.

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer with Motion to Strike

OPPOSITION:                        9 April 2025

REPLY:                                  14 April 2025

TENTATIVE:                         The demurrer is sustained in part, with 10 days leave to amend as to the 1st to 3rd, 5th 7th, 10th, 11th, 12th, 13th, 16th, 17th, 18th, and 22nd affirmative defense and is otherwise overruled as to the other defenses. The motion to strike is denied. The court sets the OSC RE: Amended Answer for May 19, 2025, at 8:30 a.m. Defendants to give notice.

Background

On October 21, 2025, Teresa Bergren (“Plaintiff”), in pro per, filed a Complaint against Paul Schon, St Realty, Inc.; STG 644 N Hobart GP, LLC; Schon Investments, LLC; Tepler Investments LLC dba Multi OD, LLC; the heirs and devisees of Artem Tepler (collectively “Defendants”) and Does (1 to 20).

The Complaint alleges six causes of action:

1)     Breach of Contract (Unlawful Rent Increases);

2)     Breach of Implied Warranty of Habitability;

3)     Violation of Civil Code § 1954.204 (Unlawful Charges for Water Service);

4)     Unfair Business Practices (Violation of Business and Professions Code § 17200, et seq.);

5)     Breach of Covenant of Quiet Enjoyment; and

6)     Intentional Infliction of Emotional Distress.

Plaintiff now demurs and moves to strike the Answer filed by Defendants. Defendants oppose the Motion. The matter is now before the court.

LEGAL STANDARDS

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

Demurrer[1]

I.         Discussion

Plaintiff demurs to the Answer on the grounds that its affirmative defenses are not pled with the requisite particularity. Defendants maintain that the Answer is properly pled and only requires the pleading of ultimate facts.

CCP § 431.30 states that if a complaint “is not verified, a general denial is sufficient but only puts in issue the material allegations of the complaint.” Plaintiff further asserts that section 430.30 requires a Defendant to include in its answer, a “statement of any new matter constituting a defense.” (CCP § 431.30(b)(2).)

Affirmative defenses are a “new matter” and introduce new issues not raised in the complaint. “Such ‘new matter” is also known as ‘an affirmative defense.’ ” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812 (Quantification Settlement Agreement Cases).) In other words, defenses or objections based on “new matter” “must be specifically pleaded.” (Advantec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 628.)  “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff.”¿ (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546.)¿ Where the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not new matters but are denials.¿ (Ibid.)¿

The court agrees that Defendants’ answer raises several affirmative defenses without stating the specific factual allegations that support its affirmative defenses, thus failing to put Plaintiff on notice as to what specific acts or omissions gave rise to the affirmative defense. Without specific factual allegations, Defendants’ defenses consist solely of legal conclusions. (See Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 366, fn. 8 [“These conclusionary allegations, which allege no specific acts, are insufficient to survive demurrer.”].) 

Defendants must plead affirmative defenses with specificity unless Defendants can show that the facts raised by the “new matter” are known only to Plaintiff. “The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Affirmative defenses are waived if not raised in the Answer. (See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 [“A party who fails to plead affirmative defenses waives them.”].) However, this does not grant Defendants the right to plead every possible affirmative defense without factual support. 

If Defendants believe certain facts exist to support their affirmative defenses, those facts may be pled on information and belief, provided Defendant has a basis for believing the allegations to be true. (See Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5.) If Defendants have no factual basis or belief to assert an affirmative defense, they cannot plead such a defense. If subsequent discovery reveals facts to support a particular affirmative defense, Defendants can always amend then amend their Answer. “As we have noted, 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.” (Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th at p. 813.)

Defendants’ 1st to 3rd, 7th, 10th, 16th, 18th, and 22nd affirmative defenses are based on information and belief. Factual allegations based on information and belief require the pleader to allege what information led the pleader to believe the allegations are true. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5; Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.) Here the affirmative defenses based on information and belief fail to state what information led Defendants to believe the certain facts exist to support the defenses pled.

The demurrer to 1st to 3rd, 7th, 10th, 16th, 18th, and 22nd affirmative defenses is sustained with leave to amend. The motion to strike these affirmative defenses is moot.

The demurrer to the 5th affirmative defense is sustained with leave to amend as Defendants fail to state what administrative and/or contractual remedy Plaintiff failed to exhaust. The demurrer to the 11th cause of action is sustained with leave to amend as Defendants fail to specify what are the intervening and superseding acts that diminish Plaintiff’s recovery. The demurrer to the 12th and 13th cause of action is sustained with leave to amend as Defendants fail to state what specific rights Plaintiff has waived and what facts support the existence of waiver, and what conduct Plaintiff engaged in to support an estoppel defense.  The demurrer to the 17th cause of action is sustained with leave to amend as Defendants fail to state what facts support the defense that Plaintiff lakes standing to bring this action. The motion to strike these affirmative defenses is also denied.

The demurrer to the 4th, 6th, 8th, 9th, 14th, 15th,  20th, and  21st affirmative defenses are overruled as the defenses are properly stated, provide Plaintiff with sufficient notice of the issue, and no additional facts are needed. The motion to strike these affirmative defenses is also denied.

Conclusion

The demurrer is sustained in part, with 10 days leave to amend, as to the 1st to 3rd, 5th 7th, 10th,

11th, 12th, 13th, 16th, 17th, 18th, and 22nd affirmative defenses and is otherwise overruled. The

motion to strike is denied. The court sets the OSC RE: Amended Answer for May 19, 2025, at

8:30 a.m. Defendants to give notice.