Judge: Latrice A. G. Byrdsong, Case: 23STLC06288, Date: 2024-03-07 Tentative Ruling
Case Number: 23STLC06288 Hearing Date: March 7, 2024 Dept: 25
Hearing Date: Thursday, March 07, 2024
Case Name: DONTAVAIS
JOHNSON v. EARLY WARNING SERVICES, LLC et. al
Case No.: 23STLC06288
Motion: Demurrer to Defendant’s First Amended Answer
Moving Party: Plaintiff
Dontavais Johnson
Responding Party: Defendant
Early Warning Services
Notice: OK
Recommended Ruling: Plaintiff Dontavais
Johnson Demurrer of Defendant’s First
Amended Answer is OVERRULED.
Defendant’s First Amended
Answer to Plaintiff’s Verified Complaint for Damages filed on 02/05/2024 stands.
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed as of February 23, 2024 [ ] Late [ ] None
REPLY: None filed late as of February 29,
2024 [ ] Late [X] None
BACKGROUND
On
October 02, 2023, Plaintiff Dontavais Johnson (“Plaintiff”) filed a cause of
action against Defendant Early Warning Services, LLC (“Defendant”) for alleged
violations of the California Consumer Credit Reporting Agencies Act under Civil
Code §1785.16 et seq.
On
December 06, 2023, Plaintiff filed a First Amended Verified Complaint for
Damages for alleged violations of the California Consumer Credit Reporting
Agencies Act under Civil Code §1785.16 et seq. (“FAC”).
On
January 08, 2024, Defendant filed its answer to Plaintiff’s FAC.
Defendant
filed an Amended Answer to Plaintiff’s FAC on January 26, 2024
On February 05, 2024, Plaintiff filed the instant Demurrer to Defendant’s
Amended Answer. Defendant replies in opposition.
No reply has been filed.
MOVING PARTY
POSITION
Plaintiff
prays for the Court to sustain his demurrer of Defendant’s Amended Answer under
CCP §§ 430.20(a), 430.20(b), and 430.50(b) because the Amended Answer does not
allege facts that are sufficient to constitute a defense and/or the alleged
defenses are otherwise uncertain. Plaintiff argues that each the “defense” made
by Defendant is either (1) not any defense at all; (2) a bare legal conclusion,
with no facts and/or irrelevant facts; (3) not sufficiently certain and or (4)
not pled with specificity.
OPPOSITION
In opposition to the demurrer,
Defendant asks the Court to overrule Plaintiff’s Demurrer. Defendant argues
that Plaintiff’s demurrer lacks merit because 1) Defendant’s affirmative
defenses are sufficiently certain, unambiguous, and intelligible 2) Plaintiff’s
claim is a blatant misrepresentation of the Amended Answer.
REPLY
No reply
has been filed.
ANALYSIS
I. Legal
Standard
A demurrer is a pleading that may be used to test the legal
sufficiency of the factual allegations in the complaint. (Code of Civ.
Proc. § 430.10.) There are two types of
demurrers – general demurrers and special demurrers. (See McKenney
v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)
General demurrers can be used to attack pleadings for
failure to state facts sufficient to constitute a cause of action or for lack
of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney,
167 Cal.App.4th at 77.) Such demurrers can
be used only to challenge defects that appear on the face of the pleading or
from matters outside the pleading that are judicially noticeable; evidence or
extrinsic matters are not considered. (Code of Civ. Proc. §§
430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury
Ins. Co. (2004) 116 Cal.App.4th 968, 994.)
For the purpose of testing the sufficiency of the cause of action, the Court
admits “all material facts properly pleaded” and “matters which may be
judicially noticed,” but does not consider contentions, deductions, or
conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at
318.) It gives these facts “a reasonable interpretation, reading it as a
whole and its parts in their context.” (Ibid.). At the
pleading stage, a plaintiff need only allege ultimate facts sufficient to
apprise the defendant of the factual basis for the claim against him. (Semole
v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the
complaint includes exhibits attached to the complaint. (Frantz v.
Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in
the exhibits contradict those alleged, the facts in the exhibits take
precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86
Cal.App.4th 1443, 1447.)
Special demurrers can be used to attack the pleadings on
grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a
contract case, for failure to allege whether a contract is oral or
written. (Code Civ. Proc., § 430.10(f).) However, special demurrers
are not allowed in limited jurisdiction civil actions and any grounds for
special demurrers must be raised as affirmative defenses in the answer.
(Code Civ. Proc., § 92(c).)
According to Code of Civil Procedure § 430.20, demurrers may also be filed to object to an
answer to a pleading on 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.
Moreover, Code of Civil Procedure
§ 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter,
the demurring party 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., §¿430.41(a).) The
parties are to meet and confer at least five days before the date the
responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)
When a demurrer
is sustained, the Court determines whether there is a reasonable possibility
that the defect can be cured by amendment. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of
facts upon which his cause of action is based,” the court should give the
plaintiff an opportunity to amend his complaint, since plaintiff should not “be
deprived of his right to maintain his action on the ground that his pleadings
were defective for lack of particulars.” (Reed v. Norman (1957)
152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend
on at least the first try, unless there is absolutely no possibility of
overcoming the issue. (See Angie M. v. Superior Court
(1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an
abuse of discretion unless the complaint shows on its face it is incapable of
amendment. [Citation.] Liberality in permitting amendment is the
rule, if a fair opportunity to correct any defect has not been given.").)
II. Discussion
Plaintiff
brings a cause of action against Defendant for alleged violations of the
California Consumer Credit Reporting Agencies Act under Civil Code §1785.16 et
seq.
A. Meet and Confer Requirement
The
demurring party must meet and confer in person or by telephone with the party
who filed the pleading to resolve the objections to be raised in the demurrer.
(CCP § 430.41(a).)
Here,
Plaintiff provides the Court with a declaration of his counsel, who states that
on January 09, 2024, she sent Defendant a meet and confer letter regarding
their Answer to Plaintiff’s Complaint. (Judith K. Robenzadeh Decl. ¶ 5; Exh. A.)
The parties met and conferred on January 12, 2024, during which Defendant’s
counsel agreed to amend Defendant’s Answer. (Id. ¶ 6.) Defendant served
their First Amended Answer on January 26, 2024. Counsel states that Defendant’s
First Amended Answer is virtually identical to its initial Answer. Counsel
further declares that given the unchanged nature of the First Amended Answer,
and the failed meet and confer efforts, there would be no reasonable
possibility that Defendant will amend its claims to resolve the identified
deficiencies. The Court finds that counsel’s declaration does not satisfy the
meet and conferral requirements under CCP § 430.41(a). Here Plaintiff’s
declaration does not show an effort on his part to meet and confer regarding Plaintiff’s
issues with the Amended Answer. CCP § 430.41(a) is meant to allow the parties
to try and resolve their issues without the need for judicial interference.
Despite this deficiency, the Court cannot sustain or overrule the demurrer
under this basis. Therefore, the Court will address the merits of the demurrer.
(Code Civ. Proc. § 430.41(a).)
B.
Defendant’s Answer to the Complaint
As a
preliminary matter, the Court notes that although Plaintiff’s moving papers address
both Defendant’s initial Answer and Amended Answer, the Court will only review
the sufficiency of Defendant’s Amended Answer as a demurrer tests the
sufficiency of the challenged pleading. The Court notes that the demurrer is
brought under an improper basis as it relates to Plaintiff’s challenging Defendant’s
ten affirmative defenses as uncertain. Here, Plaintiff does not provide any
explanation as to why Defendant’s defenses are uncertain. Under CCP § 92 (c), demurrers for
uncertainty are not permitted in courts of limited jurisdiction. (Code Civ.
Proc., § 92, subd. (c).) Noting that the action is in a limited jurisdiction,
the Court will not rule on Plaintiff’s demurrer under that basis.
Further,
Plaintiff demurs the Amended Answer on the basis that each affirmative defense
fails to state sufficient facts to constitute a defense. To sufficiently
allege an affirmative defense in the Answer, the same pleading of “ultimate
facts” rather than evidentiary matter or legal conclusions is required as when
pleading the Complaint. (FPI Development, Inc. v. Nakashimi (1991) 231
Cal.App.3d 367, 384.) In other words, 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. (Id.) Also, 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., § 431.30, subd. (g).)
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. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, pp. 490,
491; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., 120
Cal.App. 589, 600, 8 P.2d 560.) This requirement, however, does not mean that
the allegations of the complaint, if denied, are to be taken as true, the rule
being that the demurrer to the answer admits all issuable facts pleaded therein
and eliminates all allegations of the complaint denied by the answer. (Miller
& Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p.
600, 8 P.2d 560; Sheward v. Citizens' Water Co., 90 Cal. 635, 639, 27 P. 439;
Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, p. 489.)
(South Shore Land Co. v. Petersen (1964) 226
Cal.App.2d 725, 733.)
Here, the Court finds that Defendant’s affirmative defenses sufficiently allege facts to the
extent set forth in the Complaint. Each affirmative defense carefully
and with as much detail as the facts which constitute the cause of action, provides a defense to Plaintiff’s
Complaint. Noting that Plaintiff’s complaint only alleges one cause of action, each
affirmative defense is intelligently distinguishable and addresses the same cause
of action plead in the complaint. As such, the Amended Answer does allege
sufficient facts to constitute its affirmative defenses.
Accordingly,
the Court OVERRULES Plaintiff’s Demurrer.
III. Conclusion
Plaintiff Dontavais Johnson’s
Demurrer of Defendant’s First Amended Answer is OVERRULED.
Defendant’s First Amended
Answer to Plaintiff’s Verified Complaint for Damages filed on 02/05/2024
stands.
Moving parties are ordered to give
notice.