Judge: Latrice A. G. Byrdsong, Case: 23STLC07416, Date: 2024-02-08 Tentative Ruling

Case Number: 23STLC07416    Hearing Date: February 8, 2024    Dept: 25

Hearing Date:                         Thursday, February 08, 2024

Case Name:                             JASON ALAN v. SYNCHRONY BANK et. al

Case No.:                                23STLC07416

Motion:                                   Demurrer to Defendant’s Answer

Moving Party:                         Plaintiff Jason Alan

Responding Party:                   Defendant Synchrony Bank

Notice:                                    OK

Tentative Ruling:                    Plaintiff Jason Alan’s Demurrer of Defendant’s Answer is SUSTAINED WITH 20 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 January 26, 2024                           [   ] Late          [   ] None 

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

BACKGROUND

On November 20, 2023, Plaintiff Jason Alan (“Plaintiff”) filed two causes of actions against Defendant Synchrony Bank (“Defendant”) for the following: 1) Violation of the Rosenthal Fair Debt Collections Practices Act under Civil Code § 1788, et seq; and 2) Violation of the California Consumer Credit Reporting Agencies Act under Civil Code §1785.25(a).

On December 27, 2023, Defendant filed its answer to Plaintiff’s Complaint.

On January 04, 2024, Plaintiff filed the instant Demurrer to Defendant’s Answer. Defendant replies in opposition. Plaintiff files in reply.

MOVING PARTY POSITION

            Plaintiff prays for the Court to sustain his demurrer of Defendant’s Answer under CCP §§ 430.20(a), 430.20(b), and 430.50(b) because the 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 does not demurrer Defendant’s defenses based on lack of legal recognition but merely on unsupported averments. Defendant asserts that Plaintiff has failed to make anything other than boilerplate allegations that Defendant’s affirmative defenses are uncertain. Thus, because the demurrer lacks any legal support beyond argument emphasizing the standard for affirmative answers, the demurrer should be overruled.

REPLY

            In reply, Plaintiff argues that his demurrer is not boilerplate, as Plaintiff has pointed out that every affirmative defense posed by Defendant lacks any substantive allegation of fact. Plaintiff concedes that while the first “affirmative defense” for failure to state a claim may be alleged generally, the other affirmative defenses alleged should have been alleged with supportive facts according to the pleading rules, and Defendant’s failure to do so necessitates that the Court grant Plaintiff’s demurrer of the Answer.  

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 filed the two causes of actions against Defendant for the following: 1) Violation of the Rosenthal Fair Debt Collections Practices Act under Civil Code § 1788, et seq; and 2) Violation of the California Consumer Credit Reporting Agencies Act under Civil Code §1785.25(a).

            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 December 28, 2023, she sent Defendant a meet and confer letter regarding their Answer to Plaintiff’s Complaint. (Judith K. Robenzadeh Decl. ¶ 5; Exh. B.) Counsel states that she identified the deficiencies in Defendant’s Answer. However, the parties could not agree to resolve Plaintiff’s objections in the instant demurrer. (Id. ¶ 6.) On January 02, 2024, counsel avers that she left a voicemail for Defendant’s counsel after attempting to meet and confer about their answer and affirmative defenses. Counsel believes that there is no reasonable possibility that the parties will agree. (Id. ¶ 8.) The Court finds this would not satisfy the meet and conferral requirements under CCP § 430.41(a). CCP section 430.41 does not solely limit parties’ ability to “meet and confer” telephone communications; it also allows the parties to meet in person. The provisions are 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 will not rule on Plaintiff’s demurrer for uncertainty. Defendant correctly points out that the demurrer only contains boilerplate assertions that Defendant’s affirmative defenses are uncertain. Plaintiff does not provide any explanation as to why Defendant’s defenses are uncertain. Rather, Plaintiff blanketly asserts that Defendant’s affirmative defenses only contain legal conclusions but does not show how that makes them uncertain. Moreover, the Court notes that under CCP § 92 (c), demurrers for uncertainty are not permitted in courts of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the demurrer for uncertainty.

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 violation of the Rosenthal Fair Debt Collections Practices Act under Civil Code § 1788, et seq; and violation of the California Consumer Credit Reporting Agencies Act under Civil Code §1785.25(a). (Compl.) Defendant is alleged to have unjustly charged Plaintiff with various fees and interest and falsely reporting late payments on Plaintiff’s credit report resulting in a drop in his credit score. (Id. p. 3 ¶¶ 6-7.) The Complaint also alleges that Defendant engages in misleading debt collection practices. (Id. p. 4.)

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 and specifically 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 sixth affirmative defense states that “Plaintiff’s claims may be barred, in whole or in part, by the provisions of the contractual agreements between the parties.” (Ans. p. 6 ¶ 6.) 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 the affirmative defenses.  

Accordingly, for the reasons specified above, the Court SUSTIANS Plaintiff’s Demurrer with leave to amend.

III.       Conclusion

Plaintiff Jason Alan’s Demurrer of Defendant’s Answer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.  

Moving parties are ordered to give notice.