Judge Gregory Keosian, Case Number: 22STCV23285, Date: 2023-10-27 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV23285, Date: 2023-10-27 Tentative Ruling

Case Number: 22STCV23285 Hearing Date: February 13, 2024 Dept: 61

Plaintiffs Seth Cohen and September Rea’s Demurrer and Motion to Strike Portions of the Amended Answer of Defendant David Hanson Melmed is SUSTAINED without leave to amend as to the first, sixth, and seventeenth affirmative defenses. The demurrer is otherwise OVERRULED, and Plaintiffs’ motion to strike is DENIED.

Plaintiffs to provide notice.

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

An answer’s affirmative defenses must “be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (CCP § 431.30, subd. (g).) “Affirmative relief may not be claimed in the answer.” (CCP § 431.30, subd. (c).)

Plaintiffs Seth Cohen and September Rea (Plaintiffs) once again demurrer to each affirmative defense in Defendant David Hanson Melmed’s (Defendant) amended answer. They contend that affirmative defenses contending the failure to state a claim and the uncertainty of the FAC are not affirmative defenses. (Demurrer at pp. 8–9.) They further contend that the defenses are not pleaded with sufficient particularity. (Demurrer at pp. 8–14.)

Affirmative defenses which are bare legal conclusions will not survive a demurrer. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383–384.) However, “[t]here is no need to require specificity in the pleadings because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.” (Doheny Park Terrace Homeowners Ass’n, Inc. v. Truck ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, internal quotation marks omitted.) An affirmative defense is pleaded with “‘sufficient particularity’” if the pleadings, read in light of the case at hand, give notice to the plaintiff “of a potentially meritorious defense.” (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1804.)

The demurrer is properly sustained as to affirmative defenses No. 1, 6, and 17, respectively for failure to state a claim, uncertainty of the pleadings, and right to modify, as these are not affirmative defenses in the proper sense. The failure to state a claim goes to the failure of the plaintiff to state any entitlement to relief, and is not an objection that can be waived, even on appeal. (Code Civ. Proc. § 430.80.) The seventeenth affirmative defense, reserving Defendant’s right to modify the answer, is not raised as defense at all. The demurrer is therefore SUSTAINED without leave to amend as to the first, sixth, and seventeenth affirmative defenses.

The remaining defenses are properly stated. Unlike the previous answer, Defendant now includes a statement of facts, incorporated into each affirmative defense, generally denying the allegations of the complaint and offering a theory of the case that the present action is brought to coerce concessions from Defendant regarding the custody schedule of the parties’ children. Although Plaintiffs deny the allegations in their demurrer and motion to strike, they cite no legal basis for its exclusion from the pleadings. As to Plaintiffs’ arguments that the affirmative defenses are uncertain, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Demurrers to answers are indeed “very rare, probably because they are not worth the cost when the same result can be achieved by serving requests for admission or standard form interrogatories seeking the bases for the affirmative defenses.” (Weil & Brown, Cal. Practice Guide; Civil Procedure Before Trial (The Rutter Group 2023) Ch. 7(I)-A, Demurrers, [¶] 7:35:1)

The demurrer is therefore SUSTAINED without leave to amend as to the first, sixth, and seventeenth affirmative defenses, and is otherwise OVERRULED. The motion to strike the same allegations is DENIED.