Judge Lynette Gridiron Winston, Case Number: 23PSCV01634, Date: 2023-10-25 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01634, Date: 2023-10-25 Tentative Ruling

Case Number: 23PSCV01634 Hearing Date: January 5, 2024 Dept: 6

CASE NAME: Alan Aguilar, et al. v. Thong H Pham

Demurrer to Answer to Complaint

TENTATIVE RULING

The Court SUSTAINS the demurrer to Defendant’s answer with leave to amend as to the Tenth Affirmative Defense and OVERRULES the demurrer as to the Twenty-Fourth Affirmative Defense. Defendant must file and serve an amended answer within 30 days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling and file proof of service of same within five calendar days of this order.

BACKGROUND

This is a habitability case. On June 1, 2023, Plaintiffs Alan Aguilar and Karina Cervantes Ruiz (collectively, Plaintiffs) filed this action against Defendant Thong H Pham (Defendant) and Does 1 through 100, alleging causes of action for violation of Civil Code section 1942.4, tortious breach of the warranty of habitability, private nuisance, Business and Professions Code section 17200 et seq., negligence, breach of covenant of quiet enjoyment, intentional infliction of emotional distress, negligence per se, violation of Consumer Legal Remedies Act California Civil Code section 1750 et seq., intentional influence to vacate, retaliatory eviction Civil Code section 1942.5.

On October 25, 2023, the Court sustained Defendant’s demurrer without leave to amend as to the Ninth Cause of Action for Violation of Consumer Legal Remedies Act. On November 3, 2023, Defendant filed an answer to the complaint. On November 13, 2023, Plaintiff demurred to the Tenth and Twenty-Fourth Affirmative Defenses in Defendant’s answer. On November 29, 2023, Defendant opposed the demurrer. On December 5, 2023, Plaintiff replied.

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 is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the pleading; and for purposes of ruling on the demurrer, all facts pleaded in the pleading are assumed to be true. (See Id.)

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, supra, 116 Cal.App.4th at p. 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].)

MEET AND CONFER

Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer in person or by telephone before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds the parties’ meet-and-confer efforts to be insufficient, as there is no indication counsel for the parties spoke with each other in person or telephonically. (Partiyeli Decl., ¶ 3.) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will still consider the demurrer but admonishes the parties to comply with the requirements of the Code of Civil Procedure going forward.

CIVILITY

The Court finds the tone in the parties’ respective briefs to be uncivil and unprofessional. “Neither written submissions nor oral presentations should disparage the intelligence, ethics, morals, integrity or personal behavior of one’s adversaries, unless such things are directly and necessarily in issue.” (Ch. 3, Civil Division, Appendix 3.A, subd. (c)(2).) “Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.” (Id., subd. (d)(1).) The Court admonishes counsel for the parties to be civil and professional toward each other throughout this action.

DISCUSSION

Tenth Affirmative Defense – Statute of Limitations

“There are two ways to properly plead a statute of limitations: (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense and (2) plead the specific section and subdivision. [Citation.]” (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.) “In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” (Code Civ. Proc., § 458.)

Plaintiff contends Defendant’s Tenth Affirmative Defense based on the statute of limitations fails to state a defense because it neither pleads facts showing that the action is barred or the specific code section and subdivision per Code of Civil Procedure section 458. The Court agrees. Defendant’s Tenth Affirmative Defense simply alleges that, “The answering Defendant is informed and believes and thereupon alleges that the Plaintiffs’ claims are barred by the applicable statute of limitations.” (Answer, ¶ 14.) This is insufficient to plead an affirmative defense based on the statute of limitations.

Based on the foregoing, the Court SUSTAINS the demurrer to the Tenth Affirmative Defense with leave to amend.

Twenty-Fourth Affirmative Defense – Parol Evidence and Integration

A demurrer for uncertainty means the pleading is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) ““ ‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ ” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Plaintiff contends Defendant’s Twenty-Fourth Affirmative Defense for parol evidence and integration is uncertain because it references the First Amended Complaint, yet the answer is entitled “Answer to the Complaint.” (Answer, Caption Page, ¶ 28.) The Court finds this argument unavailing. At most, this is poor draftsmanship, but it is far from being unintelligible and incomprehensible. The answer specifically states at the outset that it is responding to Plaintiff’s complaint. (Answer, 1:23-25.)

Therefore, the Court OVERRULES the demurrer to the Twenty-Fourth Affirmative Defense. However, if Defendant chooses to file an amended Answer, the typo in the Twenty-Fourth Affirmative Defense should be corrected.

CONCLUSION

Plaintiff is ordered to give notice of the Court’s ruling and file proof of service of same within five calendar days of this order.