Judge Holly J. Fujie, Case 22STCV05624 2022-09-27 Tentative Ruling

Judge: Holly J. Fujie, Case: 22STCV05624, Date: 2022-09-27 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 22STCV05624 Hearing Date: September 27, 2022 Dept: 56

CASE NO.: 22STCV05624 [TENTATIVE] ORDER RE: DEMURRER TO ANSWER
Date: September 27, 2022
Time: 8:30 a.m.
Dept. 56
Judge: Holly J. Fujie

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
GROUP IX BP PROPERTIES, LP, et al.,
Defendants.

MOVING PARTY: Plaintiff

RESPONDING PARTY: Defendants

The Court has considered the moving, opposition and reply papers.

BACKGROUND

On February 15, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) public nuisance; and (2) unfair competition. Defendants filed an answer (the “Answer”) to the Complaint on June 13, 2022. On June 23, 2022, Defendants filed an amended answer (the “AA”) to the Complaint asserting 37 affirmative defenses. On August 4, 2022, Plaintiff filed a demurrer (the “Demurrer”) to the (1) second, third, fifth, 10th through 14th, 20th through 23rd, 30th, 33rd, 36th, and 37th affirmative defenses on the grounds that Defendants failed to allege sufficient facts to constitute affirmative defenses; and (2) the 10th, 20th, 21st, 22nd, 33rd, 36th, and 37th affirmative defenses on the grounds that the asserted defenses are unavailable to an abatement action as a matter of law.

DEMURRER

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

Under California Code of Civil Procedure (“CCP”) section 431.30, subdivision (d), a verified complaint must be denied positively or according to information and belief in the answer. (CCP § 431.30, subd. (d).)

In addition to denials, the answer should contain any and all affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial. Such defenses or objections are “new matter.” (CCP § 431.30, subd. (b).) Generally, a defendant bears the burden of proving “new matter” and, as such, the underlying facts must be specifically pleaded in the answer. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) 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.) The basic consideration is whether the matters of defense are responsive to the essential allegations of the complaint, i.e., whether they are contradicting elements of plaintiff’s cause of action or whether they tender a new issue, in which case the burden of proof is upon the defendant as to the allegation constituting such new matter. (Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 385.) A defense which negates an essential allegation in the complaint does not constitute a new matter, and therefore, need not be specifically pled by the defendant. (State Farm Mutual Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)

The answer must aver the ultimate facts of an affirmative defense as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) 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. (CCP § 431.30, subd. (g).) Defenses must be pleaded in the nature of “yes, the allegations [of the complaint] are true, but . . . .” (FPI Development, Inc., supra, 231 Cal.App.3d at 383.)

Within ten days of service of an answer, a party against whom an answer has been filed may object by demurrer. (CCP § 430.40.) 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.)

The allegations of the pleading demurred to must be regarded as true. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 730.) All that is necessary against a demurrer is that, upon consideration of all of the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary. (Id. at 733.) When considering a demurrer to an answer, the determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. (Id.) The demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. (Id.)

Third Affirmative Defense: Failure to Join

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if: (1) in his absence complete relief cannot be accorded among those already parties; or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (i) as a practical matter impair or impede his ability to protect that interest; or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. (CCP § 389, subd. (a).)

Here, Defendants allege that Plaintiff failed to join necessary and indispensable parties without further information. (See AA at 6:10-11.) Without more, this is insufficient to allege an affirmative defense. The Court is not persuaded by Defendants’ argument in the opposition (the “Opposition”) that the Complaint identifies the necessary parties as the AA denies the allegations of the Complaint identified in the Opposition and the Court has therefore disregarded these allegations in ruling on the Demurrer. (See South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 730.) Moreover, the AA does not allege facts providing why the Court cannot afford complete relief in the absence of such parties. (See CCP § 389.) The Court therefore SUSTAINS the Demurrer to the third affirmative defense with 20 days leave to amend.

10th and 20th Affirmative Defenses: Waiver, Estoppel, Laches

Plaintiff argues that the tenth and twentieth affirmative defenses are not available as a matter of law to abatement actions brought by a government agency. The Court agrees.

Under Civil Code section 3490, no lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right. (Civ. Code § 3490.) Laches is an equitable defense based on the principle that those who neglect their rights may be barred from obtaining relief in equity. (People v. ConAgra Grocery Prod. Co. (2017) 17 Cal.App.5th 51, 136.) It is clear, however, that neither the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat the effective operation of a policy adopted to protect the public. (Id. (emphasis in original).) Since laches is an equitable defense, it may not be asserted against the government, even if it were not barred by Civil Code section 3490, because such an application would defeat a public policy aimed at protecting the public. (Id.)

The cases cited by Defendants do not refute Plaintiff’s argument. The Court notes that while D’Egidio v. City of Santa Clarita (2016) 4 Cal.App.5th 515, a case cited by Defendants, addressed the sufficiency of the evidence regarding these affirmative defenses, the question of the availability of laches and equitable estoppel in the abatement action prosecuted by a government entity was not before the California Supreme Court.

The Court therefore SUSTAINS the Demurrer to the tenth and twentieth causes of action without leave to amend.

22nd Affirmative Defense: Statute of Limitations

Courts interpreting Civil Code section 3490 explain that the statute of limitations is no defense to an action brought by a public entity to abate a public nuisance. (See, e.g., Mangini v. Aerojet–General Corp. (1991) 230 Cal.App.3d 1125, 1142.)

As this is an abatement action brought by a public entity, the statute of limitations is not an available defense. The Court therefore SUSTAINS the Demurrer to the 22nd affirmative defense without leave to amend.

36th Affirmative Defense: Destruction of Evidence

While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.)

Defendants cite to no authority to support their position that Plaintiff’s alleged failure to preserve evidence is a recognized affirmative defense as opposed to an abuse of the discovery process. Defendants may, however, seek sanctions should they learn during the discovery process that Plaintiff failed to preserve relevant evidence. The Court therefore SUSTAINS the Demurrer to the 36th cause of action without leave to amend.

Second, Fifth, Seventh, 11th, 12th, 23rd, 30th, and 33rd Affirmative Defenses

The remainder of the affirmative defenses challenged by the Demurrer introduce new matter and do not allege the ultimate facts of the defenses. While Defendants argue that the facts necessary to support these causes of action will emerge in discovery, the standard for evaluating a demurrer assesses the allegations of an answer as pleaded. Defendants are entitled to move to amend the AA should they later discover facts that support an affirmative defense. In light of the lack of ultimate facts to support the remaining affirmative defenses, the Court SUSTAINS the Demurrer to them with 20 days leave to amend.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 22nd day of September 2022

______________________

Hon. Holly J. Fujie
Judge of the Superior Court