Judge: Joseph Lipner, Case: 22STCV15654, Date: 2025-04-17 Tentative Ruling

Case Number: 22STCV15654    Hearing Date: April 17, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant and Cross-Complainant John. C. Barlow (“Defendant”) demurs to the answer filed by Plaintiff and Cross-Defendant Misty Houwen (“Plaintiff”).

The Court SUSTAINS the demurrer WITH LEAVE TO AMEND. Plaintiff shall amend within 15 days.

The Court does not grant sanctions.

Background

This is a dispute arising out of the administration of a family trust. The following facts are taken from the allegations of the Cross-Complaint and First Amended Complaint.

On December 21, 2005, Henry Alfred Gill, Jr (“Henry”) and Shirley Mae Gill (“Shirley”) executed the Gill Family Trust. On May 18, 2007, Henry died, and Shirley became the surviving settlor and sole trustee. Pursuant to the trust document, the trust was divided into two separate trusts: (1) a Survivor’s Trust, to hold all of Shirley’s separate property and her half of the settlors’ community property; and (2) a Bypass Trust, to hold all of Henry’s separate property and his half of the community property.

After Henry’s death, Shirley made changes to the distribution provisions of the Survivor’s Trust. Additionally, Shirley amended the Survivor’s trust to provide that, upon her death, the successor trustees would be Plaintiff and Defendant, Plaintiff’s attorney.

On August 7, 2015, Shirley died, and Plaintiff and Defendant became the successor trustees.

Defendant alleges that on August 15, 2015, Plaintiff and Defendant agreed that Defendant would act as legal counsel for the Survivor’s Trust. The retainer agreement was never memorialized in writing.

Plaintiff alleges that Defendant improperly withdrew money from the Survivor’s trust.

Defendant alleges that Plaintiff improperly failed to pay Defendant for services rendered and costs incurred pursuant to the retainer agreement.

Plaintiff filed this action on May 10, 2022. The operative complaint is now the First Amended Complaint, which raises claims for (1) intentional tort; (2) fraud; (3) intentional tort; and (4) breach of contract.

On October 31, 2024, Defendant filed the Cross-Complaint, raising claims for (1) open book account; (2) account stated; and (3) quantum meruit.

Plaintiff filed an Answer to the Cross-Complaint on January 30, 2025.

On March 12, 2025, Defendant demurred to Plaintiff’s answer. Plaintiff filed an opposition. Defendant did not file a reply.

Legal Standard

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

A demurrer to an answer may be brought on one of three grounds: (1) the answer does not include facts sufficient to constitute a defense; (2) uncertainty; and (3) the facts, as pleaded, are insufficient to determine whether an alleged contract in the answer is written or oral. Code Civ. Proc., § 430.20. 

“The answer to a complaint shall contain: (1) [t]he general or specific denial of the material allegations of the complaint controverted by the defendant … [and] (2) [a] statement of any new matter constituting a defense.” (Code Civ. Proc., 431.30, subd. (b).)

Defenses should be relevant to a plaintiff’s legal claims and averred carefully, and with as much detail as the facts constituting the corresponding causes of action in the complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 (FPI Development). They should not be proffered in the form of “terse legal conclusions.” (Ibid.) “The defenses shall 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.” (Code Civ. Proc., 431.30, subd. (g).)

“The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.) “A plea controverting the original cause of action and tendering no new issue is a mere traverse and cannot be properly described as a plea setting up new matter.” (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543.)

“However, [n]o error or defect in a pleading is to be regarded unless it affects substantial rights …. The primary function of a pleading is to give the other party notice so that it may prepare its case …, and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240 [internal citations and quotation marks omitted].)

Discussion

            The Answer contains 15 separate statements of affirmative defenses. The affirmative defenses state almost no facts supporting them. Moreover, there are further problems. None of the defenses state to which causes of action they apply. Furthermore, the fourth, seventh, and fifteenth defenses each contain multiple legal theories for a defense, which violates the requirement that each defense be stated separately. (Code Civ. Proc., 431.30, subd. (g).)

            The Court therefore sustains the demurrer with leave to amend.

            Without requesting sanctions in the notice, or filing a separate motion as required under applicable statutes, Defendant argues in his brief that sanctions are warranted. Given that Plaintiff barely defends the current answer, it would have been better for her to simply have filed an amended answer rather than requiring the Court to rule on this motion.  However, the Court does not grant sanctions, and does not reach the merits of Defendant’s sanctions request, given the procedural problems noted above.