Judge: Latrice A. G. Byrdsong, Case: 23STLC06797, Date: 2024-02-15 Tentative Ruling

Case Number: 23STLC06797    Hearing Date: February 15, 2024    Dept: 25

Hearing Date:                         Thursday, February 15, 2024

Case Name:                             WESTERN FUNDING INC., a corporation qualified to do business in California v. MAHMUT FIRAT, an individual; and DOES 1 through 10, inclusive.

Case No.:                                23STLC06797

Motion:                                   Demurrer to Defendant’s Answer

Moving Party:                         Plaintiff Western Funding Inc.

Responding Party:                   Defendant Mahmut Firat

Notice:                                    OK

Tentative Ruling:                    Plaintiff Western Funding Incorporated’s Demurrer of Defendant’s Answer is SUSTAINED WITH THIRTY (30) DAYS’ LEAVE TO AMEND. 

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 01, 2024                         [   ] Late          [   ] None 

REPLY:                     None filed as of February 07, 2024                [   ] Late          [X] None 

BACKGROUND

On October 20, 2023, Western Funding Inc. (“Plaintiff”) filed two causes of actions against Mahmut Firat (“Defendant”) for the following: 1) Breach of Contract; and 2) Common Counts.

On January 05, 2024, Defendant filed his answer to Plaintiff’s Complaint.

On January 11, 2024, Plaintiff filed the instant Demurrer to Defendant’s Answer. Defendant replies in opposition.

No reply has been filed.

MOVING PARTY POSITION

            Plaintiff prays for the Court to sustain its demurrer of Defendant’s Answer under CCP §§ 430.010 et seq. and 430.020, because the Answer does not allege facts that are sufficient to constitute a defense. Plaintiff argues that each of the thirty-one (31) “defenses” made by Defendant fails to allege any ultimate facts because they are conclusory statements without any factual information to support any inference.

OPPOSITION

In opposition to the demurrer, Defendant asks the Court to overrule Plaintiff’s Demurrer. Defendant argues that the burden of asserting all permissible defenses to the claims asserted outweighs any potential efficiency gained by a heightened pleading standard. In the alternative, Defendant requests thirty (30) days leave to amend his 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 two causes of actions against Defendant for the following: 1) Breach of Contract; and 2) Common Counts.

            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 its counsel, who states that on January 05, 2024, he sent Defendant’s counsel a meet and confer letter via email regarding his Answer to Plaintiff’s Complaint. (Joshua P. Friedman Decl. ¶ 4; Exh. A.) Counsel states that he identified the deficiencies in Defendant’s Answer and requested that they file an amended answer. Counsel later declares that Defendant’s counsel did not initially respond but eventually stated that he would respond after the deadline to file a demurrer to the answer expired. (Id. ¶ 5; Exh. A.) The Court finds that Plaintiff’s declaration satisfies the meet and conferral requirements under CCP § 430.41(a). Therefore, the Court will address the merits of the demurrer. (Code Civ. Proc. § 430.41(a).)

B. Defendant’s Answer to the Complaint

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.)   

The Complaint alleges two causes of action for breach of contract and common counts. (Compl.) Defendant is alleged to have entered into a written agreement with Plaintiff and that around August 26, 2022, Defendant breached that agreement by not making payments as required by the terms of the contract. (Id. p.3; Exh. A.) The complaint further states that Plaintiff has suffered damages caused by Defendant’s breach of the agreement in an amount of $13,316.00.

Here, the Court finds that the affirmative defenses do not allege facts to the extent set forth in the Complaint. The Answer only broadly alleges the nature of the affirmative defense while both generally denying the Complaint. Additionally, none of the affirmative defenses indicate to which cause of action they respond, as required by Code of Civil Procedure section 431.30, subdivision (g). For example, Defendant’s nineteenth affirmative defense states that “The answering Defendant is informed and believes, and on such information and belief alleges, that Plaintiff’s complaint is barred by the statute of frauds” despite clear evidence from the Complaint that Plaintiff’s provide the Court with a copy of the parties’ written agreement (Ans. p. 5 ¶ 20.) Moreover, it seems clear that Answer contradicts itself as Defendant responds with the affirmative defense of full performance on one hand and impossibility of performance on the other. (Id. p. 3, 7 ¶¶ 9, 31.) The Answer, therefore, does not aver facts as carefully and with as much detail as the Complaint. Based on these inadequate allegations, the Answer fails to sufficiently allege facts to state each of its affirmative defenses.  

Accordingly, the Court SUSTAINS Plaintiff’s Demurrer with leave to amend.

III.       Conclusion

Plaintiff Western Funding Inc.’s Demurrer of Defendant’s Answer is SUSTAINED WITH THIRTY (30) DAYS’ LEAVE TO AMEND.