Judge: Mark A. Young, Case: 21SMCV01032, Date: 2023-05-03 Tentative Ruling
Case Number: 21SMCV01032 Hearing Date: May 3, 2023 Dept: M
CASE NAME: Haim, et al., v. Laaly, et al.
CASE NO.: 21SMCV01032
MOTION: Demurrer to the
First Amended Answer
HEARING DATE: 5/3/2023
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.)
Analysis
Plaintiffs Jason Haim and Amy Goldsmith demurrer to the second through
eleventh affirmative defenses of Defendants’ first amended answer (“FAA”).
2nd & 6th
Aff. Defense - Intervening Acts of Others
Defendants assert an affirmative
defense for Intervening Acts of Others. The Court considers these defenses as a
theory of comparative negligence. Comparative fault principles are properly
invoked whenever plaintiff's conduct contributes to the overall harm emanating
from the injury. (Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, 1011.) Awardable damages must be proportionately reduced to
reflect the percentage of plaintiff’s “fault.” (Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804, 828–829.) The trier of fact determines what percentage of
the fault that caused the injuries was attributable to plaintiff and then
reduces gross damages by that percentage. Thus, some amount of damages is
recoverable even if plaintiff's negligence is equal to or greater than
defendant’s. (Zavala v. Regents of Univ. of Calif. (1981) 125 Cal.App.3d
646; CACI 405, 3960; BAJI 14.90, 14.91.) The trier of fact has broad discretion
in allocating fault and may consider all relevant evidence on the question in
order to arrive at an “equitable apportionment or allocation of loss.” (Brandon
G. v. Gray (2003) 111 Cal.App.4th 29, 40-41.)
Defendants allege the following in support:
[E]ven if these
answering Defendants are subject to any liability to Plaintiffs, or any other
party herein, it will be due, in whole or in part, to the breaches of
contracts, acts, omissions, activities carelessness, recklessness, willfulness,
and/or negligence of others because Defendants deny any wrongful interference
with Plaintiffs’ exclusive use of the Haim Exclusive Easement and further deny
construction of an alleged fence; 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.
(FAA ¶ 14.)
The 6th cause of action also
alleges a comparative negligence theory. It alleges:
As and for a
separate defense to the Complaint, and all causes of action contained therein,
these answering Defendants affirmatively allege that if Plaintiffs suffered or
sustained any loss, damage or injury, as alleged in the Complaint, such loss,
damage or injury was proximately caused and contributed to by Plaintiffs in
failing to conduct themselves in a manner ordinarily expected of a reasonably
prudent person in the improper use of the Haim Exclusive Easement for yard and
landscaping purposes. The recovery of any Plaintiff herein, if any, is
diminished to the extent that any Plaintiffs’ loss or damage is attributable to
their own negligence
(FAA ¶ 18.)
Defendants provide that they did
not construct a fence or contribute to Plaintiffs’ damages. Defendants do not,
however, provide facts regarding Plaintiffs’ or others respective fault or
responsibility. As shown, there are no facts explaining the alleged intervening
acts of others that preclude recovery. Accordingly, Plaintiffs’ demurrer is
SUSTAINED with leave to amend.
3rd Aff. Defense - Mitigation
An injured party is required to do
everything reasonably possible to mitigate his or her own loss and thus reduce
the damages for which the other party has become liable. (Johnson v.
Comptoir etc. (1955) 135 Cal.App.2d 683; Spurgeon v. Drumheller
(1985) 174 Cal.App.3d 659, 665.) Defendants allege:
Plaintiffs, or
any other party, has failed, refused and/or neglected to take reasonable steps
to mitigate their alleged damages, if any, by refraining from the improper use
of the Haim Exclusive Easement for yard and landscaping purposes, thus barring
or diminishing Plaintiffs’ recovery herein.
(FAA ¶ 15.)
This does not supply facts
regarding Plaintiffs’ failure to mitigate damages. Further facts are required
to support a mitigation defense. Accordingly, the demurrer is SUSTAINED with
leave to amend.
4th Aff. Defense - Estoppel
Generally, 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. 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.)
This defense alleges:
Plaintiffs have
engaged in the improper use of the Haim Exclusive Easement for yard and
landscaping purposes, unreasonably delayed in filing the Complaint and in
notifying Defendants of the alleged harm and damages, and the basis for the
causes of action alleged against them, all of which have unduly and severely
prejudiced the Defendants in the defense of this action, thereby barring or
diminishing Plaintiffs’ recovery herein under the doctrine of estoppel.
(FAA ¶ 16.) The FAA does not supply facts regarding Plaintiff’s’
conduct upon which Defendants relied to their detriment. The FAA provides
conclusions that Plaintiffs engaged in “improper use” of the subject Easement
by using the easement for “yard and landscaping purposes”, without showing why
this would be unreasonable or provide for an estoppel. Similarly, Defendants do
not allege how Plaintiffs unreasonably delayed in brining suit, or how
Defendants were prejudiced by such conduct. Accordingly, Plaintiffs’ demurrer
is SUSTAINED with leave to amend.
5th & 11th Aff. Defenses – Waiver and Acquiescence
“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; Hoopes v.
Dolan (2008) 168 Cal.App.4th 146, 162.) Defendants allege that
“Plaintiffs have engaged in the improper use of the Haim Exclusive Easement for
yard and landscaping purposes, unreasonably delayed in filing the Complaint and
in notifying these Defendants of the alleged harm and damages[.]” This cites
the same conclusions as the estoppel theory. Like the estoppel defense, this
defense fails to allege facts supporting waiver. It does not allege Plaintiffs’
intentional relinquishment of a known right.
The same deficiencies exist in the
11th affirmative defense of Acquiescence as defendants provide no facts as to
how Plaintiffs acquiesced to Defendants’ use of the Easement. (¶ 23.)
Accordingly, Plaintiffs’ demurrer
is SUSTAINED with leave to amend.
7th & 8th Aff. Defense - No Liability and Reasonable
Care
Defendants allege that they “deny
any wrongful interference with Plaintiffs’ exclusive use of the Haim Exclusive
Easement and further deny construction of an alleged fence; as such these
answering Defendants allege that they had no knowledge of, or reasonable
grounds to believe, in the existence of facts by which liability to the
Plaintiffs would exist.” (FAA ¶ 19.)
Defendants also “deny any wrongful
interference with Plaintiffs’ exclusive use of the Haim Exclusive Easement and
further deny construction of an alleged fence as such these answering
Defendants allege that they exercised reasonable care at all times and in all
matters relevant to this action. To the extent, if any, that these answering
Defendants are found not to have exercised reasonable care, even if they had
exercised reasonable care, they would not have known of any act or omission
alleged to give rise to liability in this action because Defendants deny any
wrongful interference with Plaintiffs’ exclusive use of the Haim Exclusive
Easement and further deny construction of an alleged fence.” (¶ 20.)
These are not new matters, and thus
are not affirmative defenses. Accordingly, Plaintiffs’ demurrer is SUSTAINED
without leave to amend.
9th & 10th Aff. Defenses - Unclean Hands and
Justification
“The doctrine of unclean hands
requires unconscionable, bad faith, or inequitable conduct by the plaintiff in
connection with the matter in controversy.” (Mendoza v. Ruesga (2008)
169 Cal.App.4th 270, 279.) “Unclean hands applies when it would be inequitable
to provide the plaintiff any relief, and provides a complete defense to both
legal and equitable causes of action.” (Id.) Whether the unclean hands
doctrine applies depends on whether the unclean conduct directly relates to the
transaction upon which the complaint is made, i.e., the subject matter
involved. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton
LLP (2005) 133 Cal.App.4th 658, 681.)
Defendants allege that “Plaintiffs
are guilty of unclean hands because Plaintiffs have engaged in the improper use
of the Haim Exclusive Easement for yard and landscaping purposes, thereby
barring partially or totally any of the Plaintiffs alleged causes of action
and/or alleged claims for damages.” (FAA ¶ 21.) Defendants thus only provide
the conclusion of unclean hands. Defendants do not provide the facts of the unconscionable,
bad faith, or inequitable conduct by Plaintiffs.
Defendants also allege that their
acts and/or omissions were justified because Plaintiffs have engaged in the
improper use of the Haim Exclusive Easement for yard and landscaping purposes.
(¶ 22.) Defendants do not provide a recognized theory justifying their
acts/omissions based on Plaintiffs’ improper use of the easement.
Accordingly, Plaintiffs’ demurrer
is SUSTAINED with leave to amend.
Conclusion
Plaintiffs’ demurrer is SUSTAINED
without leave to amend as to the seventh and eighth affirmative defenses.
Plaintiffs’ demurrer is SUSTAINED with leave to amend as to the remaining affirmative
defenses set forth in the FAA.
Defendants to file a second amended
answer within 10 days.