Judge: Malcolm Mackey, Case: 21STCV39406, Date: 2023-01-26 Tentative Ruling

Case Number: 21STCV39406    Hearing Date: January 26, 2023    Dept: 55

CARRADINE v. DEWITTE                                                           21STCV39406

Hearing Date:  1/26/23,  Dept. 55

#9:   MOTION TO STRIKE.

Notice:  Okay

Opposition

MP:  Plaintiff/Cross-Defendant.

RP:  Defendants/Cross-Complainants DE WITTE MORTGAGE INVESTORS 2 FUND, LLC, CLE CAPITAL PARTNERS, LLC and PETER DE WITTE.

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.

MP Positions

Moving party requests an order granting the motion to strike the First Amended Answer, on grounds including the following:

·         The Unlawful Detainer action is collateral estoppel or claim preclusion.

·         Defendants’ motion for expunging the lis pendens was denied.

·         The amended answer fails to allege sufficient facts.

·         The amended answer fails to specify causes of action each affirmative defense relates to.  Buhne Corbett (1872)  43 C. 264.

·         Plaintiff attached supportive evidence to the reply.

·         The opposition was late and improperly served.

RP Positions

Opposing parties advocate denying, on bases including the following:

·         Plaintiff’s motion to strike fails to address Defendants' current operative pleading, to wit, the FAA, except for Defendants' First Affirmative Defense.

·         It is clear that Defendants  more than adequately stated facts sufficient to constitute a defense.

·         Plaintiff’s motion fails to specify any "irrelevant, false or improper matter" in Defendants' First Amended Answer.   Camp v. Jester, Mangles, Butler & Marmaro (1995) 35 Cal.App.4th 620, 628-629.

·         If the evidence will prove that the parties to such purported lease had no authority to enter into said lease, the lease would be invalid. This is exactly what Defendants' First Affirmative Defense alleges.

·

Tentative Ruling

The motion is denied.

A motion to strike cannot be based upon the grounds that a pleading fails to state facts sufficient to constitute a defense or a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure.  Ferraro v. Camarlinghi (2008)  161 Cal.App.4th 509, 528-29.  Unlike a motion to strike, a 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.

The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP §436.   The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP §437.  

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.

However, the difference between conclusions and ultimate facts is not clear, but involves matters of degree, and a determination whether the complaint apprises defendants of the bases.  Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exch. (2005) 132 Cal. App. 4th 1076, 1099 (citing, e.g.,  Perkins v. Sup. Ct. (1981) 117 Cal. App. 3d 1, 6).  “‘[U]ltimate fact’ is a slippery term, but in general it refers to a core fact, such as an element of a claim or defense, without which the claim or defense must fail.”  Yield Dynamics, Inc. v. Tea Systems Corp.  (2007) 154 Cal.App.4^th 547, 558.

The bases for the underlying unlawful detainer action are unclearly stated in the judgment, such that it is not clear there is a bar on the issue of lease validity. 

"If 'anything is left to conjecture as to what was necessarily involved and decided' there can be no collateral estoppel....” Dunkin v. Boskey (2000) 82 Cal. App. 4th 171, 181.  Accord  Bronco Wine Co. v. Frank A. Logoluso Farms  (1989) 214 Cal.App.3d 699, 709;  Southwell v. Mallery (1987) 194 Cal. App. 3d 140, 144.  Parties asserting collateral estoppel have the heavy burden to establish the threshold requirements.  People v. Garcia (2006) 39 Cal. 4th 1070, 1092.  “[T]he facts underlying the applicability of the res judicata defense are tried to the court, and not to a jury,…”  Windsor Square Homeowners Assn. v. Citation Homes (1997) 54 Cal.App.4th 547, 557. 

Further, the underlying Cross-Complaint, and Judgment finding against the lease, did not include Plaintiff herein as a party, and privity of the parties is unclear from evidence submitted, such that any bar is not established.  Privity includes relationships between parties to be estopped, and parties in prior litigation, which are sufficiently close, in having an identity of interests with, and adequate representation by, parties to the prior action, and circumstances indicating that parties to be estopped reasonably should have expected to be bound.  Johnson v. Glaxosmithkline (2008) 166 Cal.App.4th 1497, 1510-11. 

Finally, modern law does not require affirmative defenses to state claims they relate too. 

Older case authority may be impliedly overruled by a later trend of decisions without an opinion expressly overruling.  Frisk v. Sup.Ct. (2011) 200 Cal.App.4th 402, 411.  See also  Sei Fujii v. State (1952) 38 Cal. 2d 718, 728 (“the authority of an older case may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it.”);  Reno v. Baird  (1998) 18 Cal.4th 640, 661 (“Although these decisions do state what the Court of Appeal asserts, on examination, they do not provide strong support for plaintiff's position. …. More importantly, they rested solely on now-outdated federal authority.”);   People v. Foss  (2007) 155 Cal.App.4th 113, 123 (“assumptions and reasoning underlying the … court's conclusion are no longer valid because they are outdated and have been disproved in the cases and statutes….”). 

*IF BOTH SIDES SUBMIT ON THE COURT’S TENTATIVE RULING, PLEASE CALL 213-633-0655*