Superior Court of California 

County of Los Angeles 

Department 78 

 

KEVIN VOONG,

Plaintiff,  

vs. 

DAWN M. COULSON, et al.

Defendants. Case No.: 22STCV09372 

DEMURRER TO CROSS-DEFENDANT KEVIN VOONG’S ANSWER TO THE CROSS-COMPLAINT FILED BY DEFENDANT DAWN M. COULSON AND EPPS & COULSON, LLP.

Epps & Coulson, LLP’s demurrer to Kevin Voong’s Answer to the Cross-Complaint is SUSTAINED as to every affirmative defense but the first affirmative defense with leave to amend within 20 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order. 

FACTUAL BACKGROUND

This is an action for legal malpractice. The Complaint alleges as follows. Plaintiff Kevin Voong (“Plaintiff”) retained the services of defendants Dawn M. Coulson, Esq. (“Coulson”) and Epps & Coulson, LLP (“E&C” and together with Coulson, “Defendants”) in a judgment collection action captioned Second Generation v. Kody Branch, et al. (the “Underlying Action”). (FAC ¶ 8.) Defendants represented to Plaintiff that Defendants had the requisite skill, knowledge, and expertise to effectively represent him in the Underlying Action. (FAC ¶ 14.) Defendants billed excessively in the Underlying Action and did not accomplish anything meaningful. (FAC ¶ 19.) Additionally, Defendants represented Plaintiff in bankruptcy proceedings (the “Bankruptcy Proceedings”) related to the Underlying Action. (FAC ¶ 20.) Defendants failed to protect Plaintiff’s interests, including failing to properly oppose the creditor’s Motion for Summary Judgment, though triable issues of material fact existed. (FAC ¶ 20.) Defendants’ failure to properly defend Plaintiff in both the Underlying Action and the Bankruptcy Proceedings caused Plaintiff damages that are presently accruing. (FAC ¶ 34.)

PROCEDURAL HISTORY

On March 16, 2022, Plaintiff filed the Complaint asserting two causes of action:

1. Legal Malpractice/Professional Negligence; and, 

2. Breach of Fiduciary Duty

On March 30, 2022, the case was reassigned to the instant Department 78.

On June 7, 2023, the Court sustained Defendants’ demurrer and granted their motion to strike.

On July 7, 2023, Plaintiff filed a First Amended Complaint (“FAC”).

On September 28, 2023, E&C filed a Cross-Complaint.

On November 13, 2023, Voong Answered the Cross-Complaint.

On November 17, 2023, E&C filed this demurrer to Voong’s answer to the Cross-Complaint.

On February 9, 2024, Voong filed an opposition.

On February 13, 2024, E&C filed a reply.

DISCUSSION

E&C demurs to Voong’s Answer to the Cross-Complaint on the grounds that the Answer fails to state facts sufficient to constitute a defense or an affirmative defense.  

Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).) 

 

Here, E&C’s counsel testifies that he met and conferred with Voong’s counsel via telephone and could not reach an agreement over Voong’s Answer to E&C’s Cross-Complaint. E&C satisfied meet and confer requirements.                                                         

Analysis

E&C demurs to Voong’s Answer to the Cross-Complaint on the grounds that each of Voong’s affirmative defenses fail to state facts sufficient to constitute a defense or affirmative defense. E&C failed to explain how each affirmative defense was deficient. Nevertheless, the Court will rule on the demurrer.

Within ten (10) days of service of an answer, a party against whom an answer has been filed may object by demurrer.¿ (Code Civ. Proc., section 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.¿¿ 

(Code Civ. Proc., section 430.20.)¿  

 

A verified complaint must be denied positively or according to information and belief.¿ A general denial is effective to controvert all material allegations of an unverified complaint.¿ (Code Civ. Proc., section 431.30, subd. (d).)¿ Anything less than a general denial of the whole complaint is a “qualified” or “specific” denial.¿ A defendant can direct his or her denials to specific sentences, paragraphs, of parts of the complaint.¿ Although not widely used, a defendant can also effectively deny allegations in the complaint by alleging contrary or inconsistent facts.¿ 

 

An 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.”¿ (Code Civ. Proc., § 431.30, subd. (b).)¿ Generally, a defendant bears the burden of proving “new matter” and, as such, 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; see also Cahil Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 385 [“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.”].)¿ 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.; see also Statefarm Mutual Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725 [holding a matter negating an essential allegation in the complaint does not constitute a new matter, and therefore, need not be specifically pled by the defendant].)¿¿¿ 

The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading a complaint.¿ The answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.¿ (FPI Development, Inc. v. Nakashimi (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.”¿ (Code Civ. Proc., section 431.30(g).)¿ 

Voong’s first Affirmative Defense alleges that the Cross-Complaint does not contain facts sufficient to constitute a cause of action against him. This defense is sufficiently pled. The demurrer to this defense is overruled. 

Voong’s second and third affirmative defense states that E&C’s damages caused by the acts or omissions of others or by E&C’s own acts, negligence, omissions, and breaches of duty. Voong fails to allege any facts stating any other party caused E&C’s damages or that E&C was negligent or that it caused its own damages. Because the Answer fails to allege facts sufficient to support this defense, the demurrer is sustained as to the second and third affirmative defenses. 

The thirteenth and fourteenth defenses also state E&C’s damages should be reduced by comparative fault of E&C and third parties. These defenses are insufficiently pled for the same reasons as the second and third defenses.

The fifteenth defense also states E&C’s injuries were caused by an intervening and superseding cause. This defense also fails for the same reasons as the second and third defenses.

The fourth affirmative defense states E&C waived its rights to relief from Voong for his acts or omissions. The Answer fails to state facts showing E&C waived any relief from Voong. The demurrer to this defense is sustained.

The seventh affirmative defense states the Cross-Complaint is barred by the applicable statutes of limitations. To properly plead a statute of limitations defense, a defendant must either (1) allege facts showing that the action is barred and indicating that the lateness of the action is being urged as a defense, or (2) plead the specific section and subdivision. (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.) Here, Voong’s Answer fails to state which section and subdivision contains the applicable statute of limitations. Voong’s Answer fails to meet the requirements to plead a statute of limitations defense. The demurrer is sustained as to this defense.

Voong also alleges the following affirmative defenses:

Sixth: Failure to mitigate

Eighth: Laches

Ninth: Standing

Tenth: No proximate or legal cause

Eleventh: Unclean hands

Twelfth: Failure to exercise reasonable care 

Sixteenth: Estoppel

Seventeenth: No duty

These defenses consist solely of legal conclusions. Voong fails to allege any facts supporting these affirmative defenses. The demurrer is sustained as to these defenses.

Voong argues that his Answer is sufficiently pled when considered in context with all the pleadings and that the facts supporting each defense are clearly laid out in the Complaint. However, Voong was required to aver the facts in his Answer. Voong’s Answer consists primarily of conclusory statements and fails to refer to any particular facts in the Complaint. Because Voong argues he may cure the deficiencies in the Answer by importing facts from the Complaint, the demurrer is sustained as to all but the first affirmative defense with leave to amend.

DATED: February 22, 2024 

____________________________

Hon. Jill Feeney

Judge of the Superior Court