Judge: H. Jay Ford, III, Case: 24SMCV00621, Date: 2024-10-15 Tentative Ruling

Case Number: 24SMCV00621    Hearing Date: October 15, 2024    Dept: O

Case Name:  Lewensztain, et al. v. El Camino Townhouses Owners Association

SUBJECT:                 DEMURRER TO ANSWER

MOVING PARTY:   Plaintiffs Miriam Lewensztain and Shlomo Kattan 

RESP. PARTY:         Defendant Karamali Mohammad Pashmforoosh

TENTATIVE RULING

            Plaintiffs Miriam Lewensztain and Shlomo Kattan’s Demurrer to the 1^st–11, 13^th –28^th affirmative defenses in Defendant Karamali Mohammad Pashmforoosh Answer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. Defendant fails to allege ultimate facts that would constitute the affirmative defenses in the answer.

REASONING

“A demurrer to an answer may be taken to the whole answer or to any one or more of the several defenses set up in the answer.” (Code Civ. Proc., § 430.50, subd. (b).) The party against whom an answer has been filed may demur on the basis that the answer does not state facts sufficient to constitute a defense or is uncertain (See Code Civ. Proc., § 430.20, subds., (a) and (b).)

Demurrer to an answer must be overruled if any defense to the complaint is properly alleged.  (See South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733–734 [demurrer to answer properly overruled based on sufficiently pled general denial].)  A general denial contained in the answer requires that the entire demurrer be overruled.  (See People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499 [discussing MJP based on failure to state facts to constitute a defense]; Engine Manufacturers Assn. v. State Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034 [MJP must be denied if “defendant's pleadings raise a material issue or set up affirmative matter constituting a defense”].); Barasch v. Epstein (1957) 147 Cal.App.2d 439, 443 [“[w]here the answer, fairly construed, suggests that the defendant may have a good defense, a motion for judgment on the pleadings should not be granted”].) 

“An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.”  (5 Witkin, Cal. Proc. (5^th ed. 2008) Plead, § 1082; see also Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879–880 [demurrer to answer asks whether the answer raises a defense to the plaintiff's stated cause of action].)  Pleadings are meant “to inform ... adversaries of the nature of the cause which they state against them with sufficient particularity to advise them of the issue they will be required to meet at the trial of the action.”  (Lewis v. Fahn (1952) 113 Cal.App.2d 95, 100.)  Facts that establish a complete discharge of defendant's previously accrued liability must be specially pleaded. (5 Witkin, supra, § 1082.)

To properly plead an affirmative defense, an answer must set forth facts “as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 267, 284.)

“In order to assert equitable estoppel, the following four elements must be present: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct be acted on, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1250.) “To establish estoppel as an element of a suit the elements of estoppel must be especially pleaded in the complaint with sufficient accuracy to disclose facts relied upon.” (Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1250.)

Waiver is an excuse for performance of conditions precendent and must be pleaded specifically. (See Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 140.)

The court may, upon a motion to strike, “or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).)

Plaintiffs Miriam Lewensztain and Shlomo Kattan (“Plaintiffs”) filed their demurrer to the answer on 5-15-24, more than 30 days after the answer was filed on 4-3-24. Defendant Karamali Mohammad Pashmforoosh (“Defendant”) did not raise the argument that the demurrer was filed late pursuant to CCP § 430.40(b). “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. (Code Civ. Proc., § 430.40, subd., (b).) Thus, Defendant has waived the argument. The Court will allow the late filing due to Defendant’s waiver, and in the interest of justice. “The court may, in furtherance of justice, and on any terms as may be proper, ... enlarge the time for answer or demurrer.” (Code Civ. Proc., § 473, subd. (a)(1).) The trial court may exercise this discretion so long as its action does “not affect the substantial rights of the parties.” (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873 [affirming trial court's decision to permit plaintiff to file late amendment following demurrer]; see Code Civ. Proc., § 475.)

I.                Demurrer to the 1^st–11 and 13^th–28^th affirmative defenses – SUSTAINED WITH 20 DAYS LEAVE TO AMEND

Defendant fails to allege ultimate facts that would constitute the affirmative defenses in the answer. The 1^st–11 and 13^th–28^th affirmative defenses merely state legal conclusions which are not sufficient to plead an affirmative defense. Additionally, the 11^th, 13^th, 14^th and 15^th equitable affirmative defenses have heightened pleading requirements.  Merely stating Plaintiffs have waived their rights, Plaintiffs have unclean hands, Plaintiffs are barred by the doctrine of laches, and Plaintiffs are barred by equitable estoppel are legal conclusions without sufficient facts to plead the equitable defenses.

Plaintiff argues some of the Defendants 1^st, 3^rd, 6^th and 23^rd affirmative defenses are mere denials of elements of causes of action within the complaint and not an actual affirmative defense. Plaintiff further argues the 2^nd, 4^th–6^th, 9^th, 10^th, 20^th, 21^st, 23^rd–28^th defenses are inapplicable, irrelevant, improper, and/or duplicative and thus should be stricken from the answer pursuant to CCP § 436(a). Plaintiff did not file a motion to strike alongside the demurrer, and the Court does not deem striking these defenses as proper at this stage. 

Thus, the Demurrer to the 1^st–11 and 13^th–28^th affirmative defenses is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.