Judge: Lynne M. Hobbs, Case: 23STCV25798, Date: 2024-06-12 Tentative Ruling

Case Number: 23STCV25798    Hearing Date: June 12, 2024    Dept: 61

EDAENA LOVILLO, et al. vs SERGIO FLORES, et al.

TENTATIVE   

Plaintiffs Edaena Lovillo, Francisco Lovillo, Ashely Lovillo, and Kevin Lovillo’s Demurrer to Defendants Sergio Flores, Graciela Flores, and German E. Galvez’s Answer is SUSTAINED with leave to amend..

Plaintiffs to give notice.

Wednesday, June 12, 2024

Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Plaintiffs Edaena Lovillo, Francisco Lovillo, Ashely Lovillo, and Kevin Lovillo (Plaintiffs) demurrer to several of the affirmative defenses contained in the answer of Defendants Sergio Flores, Graciela Flores, and German E. Galvez (Defendants). The defenses at issue are affirmative defenses No. 1–7, 10–14, 16–19, 22, 23, and 27–31. Plaintiffs argue that Defendants fail to plead which defense is asserted by which party, against which party, and against which cause of action, and further that the defenses are not pleaded with adequate supporting facts. (Demurrer at pp. 4–12.) Plaintiffs also argue that several defenses do not state new matter and do not constitute defenses. (Ibid.)

An answer’s affirmative defenses must “be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (CCP § 431.30, subd. (g).) “Affirmative relief may not be claimed in the answer.” (CCP § 431.30, subd. (c).)

Affirmative defenses which are bare legal conclusions will not survive a demurrer. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383–384.) However, “[t]here is no need to require specificity in the pleadings because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.” (Doheny Park Terrace Homeowners Ass’n, Inc. v. Truck ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, internal quotation marks omitted.) An affirmative defense is pleaded with “‘sufficient particularity’” if the pleadings, read in light of the case at hand, give notice to the plaintiff “of a potentially meritorious defense.” (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1804.)

Plaintiffs are correct that the defenses contained in the answer are alleged as “bare legal conclusions” without supporting facts. Moreover, the answer does not comply with Code of Civil Procedure § 431.30’s requirement that “[t]he defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (Code Civ. Proc. § 431.30, subd. (g).) Nor does the answer indicate the parties asserting the defenses or the parties against whom they’re directed, as required by CRC Rule 2.112, subd. (3), (4).

Plaintiffs’ other arguments with respect to whether specific items listed as affirmative defenses actually constitute defenses are mere denials of elements of the pleadings are unsupported. Plaintiff supports no argument as to any individual defense with supporting authority, and relies broadly on case authority holding that affirmative defenses, unlike denials, must be separately and affirmatively pleaded: “All facts which directly tend to disprove any one or more of these averments may be offered under the general denial: all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defense independently of them, cannot be offered under the denial; they are new matter, and must be specially pleaded.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Thus authority does not render the redundant assertion of denials of specific facts under the rubric of “defenses” subject to demurrer.

Accordingly, the demurrer is SUSTAINED with leave to amend.