Judge: Malcolm Mackey, Case: 21STCV39406, Date: 2022-08-30 Tentative Ruling
Case Number: 21STCV39406 Hearing Date: August 30, 2022 Dept: 55
CARRADINE
v. DEWITTE 21STCV39406
Hearing Date: 8/30/22,
Dept. 55
#7: DEMURRER TO VERIFIED ANSWER TO PLAINTIFF’S
VERIFIED COMPLAINT.
Notice: Okay
No
Opposition
MP:
Plaintiff
RP:
Summary
On 10/26/21, Plaintiff SANDRA WILL CARRADINE, a
self-represented litigant, filed a Complaint.
On 3/10/22, Plaintiff filed a First Amended Complaint,
alleging: For years, defendants have
been trying to drive Plaintiff out of her leased premises, including by
fraud. Plaintiff successfully obtained
summary judgment in an unlawful detainer action, based upon having a lease with
an option to purchase, at 2115 N. Upper Krest St., Los Angeles, CA 90046. Defendant DEWITTE MORTGAGE INVESTORS FUND, LLC
(DMIF) had foreclosed on a second deed of trust. Also, Defendant PETER DEWITTE recorded
an assignment of a deed of trust to himself, and seeks to foreclose on the
extinguished first deed of trust, using CLE CAPITAL PARTNERS LLC (CLE) as a
strawman.
The causes of action are:
1. FRAUD.
2. VIOLATION
OF ANTI-HARASSMENT ORDINANCE.
3. BREACH
OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
4. TORTIOUS
INTERFERENCE WITH CONTRACT.
On 3/3/22, defendants DE WITTE MORTGAGE INVESTORS FUND
LLC and PETER DE WITTE filed a Cross-Complaint against Plaintiff and others,
alleging that cross-defendants made publications including a lis pendens
against the property, which casts doubts on the propriety of
cross-complainants’ claims to title in the Property.
Cross-complainants’ Causes of Action are:
1. SLANDER OF TITLE;
2. INTENTIONAL
INTERFERENCE WITH ECONOMIC RELATIONS;
3. NEGLIGENT INTERFERENCE
WITH ECONOMIC RELATIONS;
4. DECLARATORY RELIEF;
5. EJECTMENT;
6. FRAUDULENT INTENTIONAL
MISREPRESENTATION; AND
7. NEGLIGENT
MISREPRESENTATION.
Notices of related cases were filed 3/14/22.
MP
Positions
Moving party requests an order sustaining the demurrer
to the Answer to the First Amended Complaint, on grounds including the
following:
·
The 52 affirmative defenses, based upon
boilerplate allegations, fail to state facts sufficient to constitute a
defense. Rodriguez v. Cho (2015) 236 Cal. App. 4th 742, 751.
·
Many of the affirmative defenses are
uncertain.
·
Many of the affirmative defenses are
inapplicable, given true facts, and prior rulings.
Tentative
Ruling
The demurrer is sustained, with 20 days’ leave to
amend.
Reading the Answer readily reveals that much of it
consists of conclusions without ultimate facts, such as the following example:
TWELFTH
AFFIRMATIVE DEFENSE
(Waiver)
FOR A TWELFTH AND
SEPARATE AFFIRMATIVE DEFENSE TO THE FIRST
AMENDED COMPLAINT, AND
ALL CAUSES OF ACTION CONTAINED
THEREIN, these answering
Defendants are informed and believe and thereon allege that
Plaintiff has waived any
rights to recover damages from these answering Defendants.
(Answer, p. 6.)
A general demurrer may be made on the ground that an
answer does not state facts sufficient to constitute a defense. Timberidge Enterprises, Inc. v. City of
Santa Rosa (1978) 86 Cal. App. 3d 873, 880.
“Generally speaking, the determination whether an answer states a
defense is governed by the same principles which are applicable in determining
if a complaint states a cause of action.”
South Shore Land Co. v. Petersen (1964) 226 Cal. App. 2d 725,
732.
An answer must aver facts as carefully as is required for
complaints. FPI Dev., Inc. v.
Nakashima (1991) 231 Cal.App.3d 367; 384.
“Affirmative defenses must not be pled as ‘terse legal conclusions,’…”
but rather as facts averred in as much detail as is required in
complaints. In re Quantification
Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 813.