Judge: Mark A. Young, Case: 21SMCV01015, Date: 2023-02-24 Tentative Ruling
Case Number: 21SMCV01015 Hearing Date: February 24, 2023 Dept: M
CASE NAME: Gordon v. Villa
San Michele Owners Assoc., et al.
CASE NO.: 21SMCV01015
MOTION: Demurrer
to the First Amended Answer
HEARING DATE: 2/24/2023
BACKGROUND
This action arises from a dispute between a homeowner and
an HOA. Plaintiff Mila Gordon owns 13206A Fiji Way, Marina del Rey, CA
90292 (the “Property”). The Property is a common interest development governed
by a Declaration of Covenants, Conditions, and Restrictions recorded on March
26, 2001 in the Official Records of Los Angeles County as Instrument No.
01-0483459 (the “CC&Rs”) and managed by Defendant Villa San Michele Owners
Association (the “HOA”). Plaintiff alleges that in 2015, the common areas leaked
water into the Property, causing damage and forcing her to move out for over
three and a half years. The HOA concluded Plaintiff was 1/3 (one-third)
at-fault for the damage and levied a $81,310 fine against Plaintiff.
Legal
Standard
A
party against whom an answer has been filed may object by demurrer to the
answer. (CCP § 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). (CCP §§ 422.10, 589.) “A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters.” (Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is sustained only where the defects appear
on the face of the pleading or are judicially noticeable. (CCP, § 430.30.)
In
addition to denials, the answer should contain any and all affirmative defenses
or objections to the complaint that defendant may have, and that would
otherwise not be in issue under a simple denial.¿ Such defenses or objections
are “new matter.”¿ (CCP § 431.30(b).)¿ Generally, a defendant bears the burden
of proving “new matter” and, as such, must be specifically pleaded in the
answer.¿(California Academy of Sciences v. County of Fresno (1987) 192
Cal.App.3d 1436, 1442.)¿“The phrase ‘new matter’ refers to something relied on
by a defendant which is not put in issue by the plaintiff.”¿ (Walsh v. West
Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546;
see also Cahil Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367,
385 [“The basic consideration is whether the matters of defense are responsive
to the essential allegations of the complaint, i.e., whether they are
contradicting elements of plaintiff’s cause of action or whether they tender a new
issue, in which case the burden of proof is upon the defendant as to the
allegation constituting such new matter.”].)¿ Where the answer sets forth facts
showing some essential allegation of the complaint is not true, such facts are
not new matter but are denials.¿(Ibid.; see also Statefarm Mutual
Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725 [holding a
matter negating an essential allegation in the complaint does not constitute a
new matter, and therefore, need not be specifically pled by the defendant].)¿¿¿
The
same pleading of “ultimate facts” rather than evidentiary matter or legal
conclusions is required as in pleading a complaint.¿ 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.¿ (FPI Development, Inc. v.
Nakashimi (1991) 231 Cal.App.3d 367, 384.)¿ 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.”¿ (CCP § 431.30(g).)¿ Defenses must be pleaded in the nature of
“yes, the allegations [of the complaint] are true, but . . .”¿ (FPI
Development, Inc., supra, 231 Cal.App.3d at p. 383.)¿
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that the pleader can successfully amend. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.) The burden is on the pleader to show in
what manner the pleading may be amended, and how that
amendment will change the legal effect of the pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.) Plaintiff met the meet and confer
requirements.
Analysis
Plaintiff Gordon demurs to the
First, Fourth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth,
Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth,
Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth,
Twenty-Sixth, Twenty-Seventh, Twenty-Eighth, Thirtieth, Thirty-First,
Thirty-Second, and Thirty-Third affirmative defenses.
Failure to State Facts in Support of Defenses
Plaintiff demurs to the HOA’s ninth
(estoppel), tenth (waiver), eleventh (laches), twentieth (justification), twenty-second
(statutory immunity) and twenty-third (unjust enrichment) affirmative defenses.
Plaintiff argues that each fail to state sufficient facts to support the new
matter.
“Estoppel” applies where one party’s language or conduct
induces the other to take such a position that it would be injured if the first
party were permitted to repudiate its statement or acts. (Hoopes v.
Dolan (2008) 168 Cal.App.4th at 162.) A party asserting the defense
of estoppel must establish the following elements: (1) the party estopped
must know the facts; (2) the party estopped must engage in conduct
intended to be acted upon by the party asserting estoppel; (3) the party asserting
estoppel must be ignorant of the true state of facts; and (4) injury must
result from reliance on the other's conduct. (Wells Fargo Bank v. Bank of America (1995) 32
Cal.App.4th 424, 437-38.)
“Waiver” is the intentional relinquishment of a known right
after knowledge of the facts. A waiver depends only upon one party's intention;
it does not require any act or conduct by the other party. (Gould v.
Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179.) Under
certain circumstances, a waiver may be implied by a party’s conduct that is
inconsistent with the right being asserted. (Id. at 1179-80 (landlord
waived lease’s anti-waiver provision and any defect in tenant's performance of
lease’s early termination provision by accepting and retaining early
termination payments].) “ ‘[T]he pivotal issue in a claim of waiver is the
intention of the party who allegedly relinquished the known legal right.’
[Citation.]” (Old Republic Ins. Co. v.
FSR Brokerage, Inc. (2000) 80 Cal.App.4th 666, 678.)
"Laches is an equitable defense. It consists of a
failure on the part of a plaintiff to assert his rights in a timely fashion
accompanied by a period of delay with consequent results prejudicial to the
defendant; in proper circumstances, it constitutes an equitable bar to the
maintenance of a plaintiffs alleged cause of action. A mere delay, considered
alone, does not usually constitute laches; normally, to be an effective bar,
the delay must be disadvantageous to a defendant, and constitute a
quasi-estoppel.” (Swart v. Johnson¿(1942) 48 Cal.App.2d 829, 834.)
Laches is warranted where there is “unreasonable delay plus either acquiescence
in the act about which plaintiff complains or prejudice to the defendant
resulting from the delay.” (Drake v. Pinkham (2013) 217 Cal.App.4th 400,
406.) “Any delay is measured from the time the plaintiff knew (or should have
known) about the alleged claim.” (Ibid.) "The existence of laches is a question of fact to be
determined by a weighing of all of the applicable circumstances by the trial
judge." (Rouse v. Underwood (1966) 242 Cal. App. 2d 316,
325.)
Courts recognize the concept of
“unjust enrichment” as a general principle underlying other legal doctrines and
remedies. “It is synonymous with restitution.” (McBride v. Boughton (2004) 123
Cal.App.4th 379, 387.)
The phrase
“unjust enrichment” is used in law to characterize the result or effect of a
failure to make restitution of or for property or benefits received under such
circumstances as to give rise to a legal or equitable obligation to account
therefor. One person should not be permitted unjustly to enrich himself at the
expense of another, but should be required to make restitution of or for
property or benefits received, retained, or appropriated, where it is just and
equitable that such restitution be made, and where such action involves no
violation or frustration of law or opposition to public policy, either directly
or indirectly. As expressed by some authorities, the obligation to do justice
rests upon all persons, natural and artificial; if one obtains the money or
property of others without authority, the law, independently of express
contract, will compel restitution or compensation. This expansive general
principle is qualified by the rule that the mere fact that a person benefits
another is not of itself sufficient to require the other to make restitution
therefore. Though there may be enrichment, it may not be unjust.
(Dinosaur Development, Inc. v. White (1989) 216
Cal.App.3d 1310, 1314-1316 [quotations and citations omitted].) Such affirmative defenses must not be pled as
“terse legal conclusions… rather ... as facts ‘averred as carefully and with as
much detail as the facts which constitute the cause of action and are alleged
in the complaint.’ ” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d
367, 384.)
The estoppel and waiver defenses
are based on Plaintiff’s alleged decision to place and maintain “illegal and
improperly installed shower and washing machine in her unit.” (FAA ¶¶ 10, 11.) Such
facts do not support the above-cited elements for estoppel or waiver. The
answer does not allege that Plaintiff made any representations or knowingly
gave up any rights. Therefore, the FAA requires further facts as to these
defenses.
The eleventh (laches), twentieth
(justification), and twenty-third (unjust enrichment) affirmative defenses do
not plead any facts. Instead, they provide legal conclusions. For instance, Plaintiff
“delayed the commencement and prosecution of this action which has unduly
prejudiced defendant” (¶ 12); defendant’s conduct “was justified” and therefore
Plaintiff is “barred from any recovery” (¶ 21); and “Any recovery by plaintiff
would be unjust and inequitable under the circumstances of this case” (¶ 24). The
First Amended Answer requires further facts as to these defenses.
The twenty-second defense claims that
Defendant complied with all statutory requirements, such that plaintiff is
barred from recovery pursuant to any alleged statutory violations or grounds
for recovery. (FAA ¶ 23.) This does not state what the applicable statutes are
and facts showing that any of those provisions would apply. Further facts would
therefore be required.
Accordingly, Plaintiff’s demurrer
is SUSTAINED with leave to amend as to these defenses.
Non-Affirmative Defenses
Plaintiff demurs to the HOA’s
first, fourth, twelfth, thirteenth, seventeenth, thirtieth, and thirty-first
affirmative defenses on the grounds that they do not qualify as affirmative
defenses. (FAA ¶¶ 2, 5, 13, 14, 18, 31 and 32.) The Court concurs that these
are not technically affirmative defenses, as they do not constitute “new
matters” and do not need to be pled. Instead, they are mere denials or technical
objections to the underlying complaint. Likewise, the thirty-second and thirty-third
defenses are unnecessary “reservation of rights” to add more defenses. Such reservations
are simply not affirmative defenses.
Accordingly, Plaintiff’s demurrer
is SUSTAINED without leave as to these defenses.
Twenty Fifth Defense: Failure to Notify
Defendant does not provide any
authority that the twenty-fifth affirmative defense is a defense to any cause
of action. Accordingly, Plaintiff’s demurrer is SUSTAINED without leave as to
this defense.
Non-applicable Affirmative Defenses
Plaintiff argues that twenty-sixth,
twenty-seventh, and twenty-eighth defenses concern construction defect
litigation, and thus have no applicability. These defenses are based on Civil
Code sections 896, 945.5(b), (c), (d). Civil Code section 896 states:
In any action
seeking recovery of damages arising out of, or related to deficiencies in,
the residential construction, design, specifications, surveying, planning,
supervision, testing, or observation of construction, a builder, and
to the extent set forth in Chapter 4 (commencing with Section 910), a
general contractor, subcontractor, material supplier, individual product
manufacturer, or design professional, shall, except as specifically set
forth in this title, be liable for, and the claimant's claims or causes of
action shall be limited to violation of, the following standards, except as
specifically set forth in this title.
(Emphasis added.)
Civ. Code sections 945.5(b),(c) and
(d) state:
A builder,
general contractor, subcontractor, material supplier, individual product
manufacturer, or design professional, under the principles of comparative
fault pertaining to affirmative defenses, may be excused, in whole or in part,
from any obligation, damage, loss, or liability if the builder, general
contractor, subcontractor, material supplier, individual product manufacturer,
or design professional, can demonstrate any of the following affirmative
defenses in response to a claimed violation:
(b) To the
extent it is caused by a homeowner's unreasonable failure to minimize or
prevent those damages in a timely manner, including the failure of the
homeowner to allow reasonable and timely access for inspections and repairs
under this title. This includes the failure to give timely notice to the
builder after discovery of a violation, but does not include damages due to the
untimely or inadequate response of a builder to the homeowner's claim.
(c) To the
extent it is caused by the homeowner or his or her agent, employee, general
contractor, subcontractor, independent contractor, or consultant by virtue of
their failure to follow the builder's or manufacturer's recommendations, or
commonly accepted homeowner maintenance obligations. In order to rely upon this
defense as it relates to a builder's recommended maintenance schedule, the
builder shall show that the homeowner had written notice of these schedules and
recommendations and that the recommendations and schedules were reasonable at
the time they were issued.
(d) To the
extent it is caused by the homeowner or his or her agent's or an independent
third party's alterations, ordinary wear and tear, misuse, abuse, or neglect,
or by the structure's use for something other than its intended purpose.
(Emphasis added.)
Indeed, these sections do not have
any factual basis in this lawsuit. Moreover the answer pleads no facts which
suggests they could be applied. The opposition does not even address these
defenses.
Finally, Plaintiff argues that the
twenty-first defense has no applicability here. This defense (violation of tenant’s
obligations) is based on Civil Code § 1941.2. However, Plaintiff is not pled to
be a tenant, and the HOA is not pled to be a landlord. As such, Civil Code
section 1941.2 facially does not apply.
Accordingly, Plaintiff’s demurrer
is SUSTAINED without leave as to these defenses.