Judge: Mark A. Young, Case: 21SMCV01032, Date: 2022-10-18 Tentative Ruling
Case Number: 21SMCV01032 Hearing Date: October 18, 2022 Dept: M
CASE NAME: Haim, et al., v. Laaly, et al.
CASE NO.: 21SMCV01032
MOTION: Plaintiff’s Demurrer to the Answer
HEARING DATE: 10/18/2022
Legal Standard
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.) 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.)
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 [defenses must be pleaded in the nature of “yes, the allegations [of the complaint] are true, but . . .”].) 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).)
The allegations of the pleading demurred to must be regarded as true. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 730.) All that is necessary against a demurrer is that, upon consideration of all of the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary. (Id. at 733.) When considering a demurrer to answer, the “determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (Ibid.) “[T]he demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.” (Ibid.)
“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 plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on pleader to show in what manner they can amend the pleading, 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.) The parties met and conferred prior to the filing of the demurrer (Garofalo Decl. ¶¶ 3-7.)
Analysis
Plaintiff demurs to Defendants’ answer’s second through twenty third affirmative defenses. The Court agrees that the answer contains no allegations to support the various new matters pled in the answer. Each of the cited affirmative defenses only contain legal conclusions. For instance, the second affirmative defense for intervening acts of others states:
14. As and for a separate defense to the Complaint, and all causes of action contained therein, these answering Defendants are informed and believe and thereon alleges that they are not legally responsible in any way or fashion with respect to damages and injuries claimed by Plaintiffs in the Complaint; however, if these answering Defendants are subject to any liability to Plaintiffs, or any other party herein will be due, in whole or in part, to the breaches of contracts, acts, omissions, activities carelessness, recklessness, willfulness, and/or negligence of others; wherefore, any recovery obtained by Plaintiffs or any other party herein against these answering Defendants, should be reduced in proportion to the respective fault and legal responsibility of all parties, persons or entities, including, but not limited to, their agents, representatives, servants and/or employees or contributed to and/or caused by such injury and/or damages in accordance with the law of comparative liabilities; the liabilities of these answering Defendants, if any, are limited in direct proportion to the percentage of fault actually attributed to these answering Defendants.
(Answer, ¶ 14.)
Notably, there are no positive statements of fact supporting the contention that other parties are directly responsible for Plaintiff’s damages. Each affirmative defense contains similar conclusory remarks without allegations of fact supporting the defenses.
Defendants contend that they do have supporting facts that could be unveiled through discovery. For instance, counsel provides that: “while Defendants were on vacation, Plaintiffs caused the deconstruction of a planter and removed a palm tree that was inside the easement property and on Defendant’s real property. Defendants [are] investigating if these were the result of others. For many years easement property contained a planter and palm tree that for years and these structures were in place prior to Plaintiffs’ purchase of the neighboring property.” These allegations are notably absent from the answer. As such, Defendants concede that there are no facts, but provide an offer of proof for amendment.
Accordingly, Plaintiff’s demurrer is SUSTAINED with 10 days leave to amend.