Judge: Joseph Lipner, Case: 23STCV14698, Date: 2023-09-07 Tentative Ruling

Case Number: 23STCV14698    Hearing Date: September 7, 2023    Dept: 72

9/7/23

#8

Case Number:  23STCV14698

Case Name:  Greer v. Professional Claims Bureau, Inc., et al.

            On August 4, 2023, Plaintiff Joshua Greer (“Plaintiff”) filed a demurrer to the answer of Defendant Professional Claims Bureau, Inc. (“Defendant”). Defendant has not opposed the demurrer.

            The Court SUSTAINS the demurrer with leave to amend.   Defendant must file an amended answer within 10 days of the date of this order.

Background of the Case

            This action arises out of a dispute concerning the collection of certain debts. Plaintiff alleges Defendant engaged in various unlawful debt collection practices in connection with a debt Plaintiff purports he does not owe. Plaintiff filed this action on June 26, 2023, alleging causes of action against Defendant for violations of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq., and Unfair Competition Law, Bus. & Prof. Code § 17200 et seq.

Legal Standard

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.”

(Code Civ. Proc., § 430.20.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

Preliminary Issue

            The Court notes that Plaintiff’s demurrer fails to comply with the requirements of Rule 3.1320(a) of the California Rules of Court, which provides as follows:

            “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”

(Cal. Rules of Court, rule 3.1320, subd. (a); see also Code Civ. Proc., § 430.60 [“A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”])

            Plaintiff’s demurrer fails to state each ground for demurrer for each affirmative defense in Defendant’s answer in a separate paragraph. Plaintiff instead generally refers to all affirmative defenses and then states the grounds for the demurrer in the same paragraph. Nevertheless, the Court exercises its discretion to still consider the demurrer, and admonishes Plaintiff to comply with the California Rules of Court going forward.

Analysis

“’Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather ... as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’’” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-813) [internal citations omitted].

The Court agrees with Plaintiff that Defendant’s answer is devoid of allegations to support any of the affirmative defenses alleged therein. (Answer, 2:3-6:14.) Defendant’s answer fails to even identify the applicable statutes that purportedly support the affirmative defense of statute of limitations. (Code Civ. Proc., § 458.) The Court further infers that Defendant’s lack of opposition to the demurrer is a tacit admission that the contentions of the demurrer are meritorious.

Accordingly, the Court SUSTAINS the demurrer with leave to amend. Defendant must file an amended answer within 10 days of the date of this order.