Judge Mark E. Windham, Case 19STCV11064 2023-03-15 Tentative Ruling

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Plaintiff Lloyd Byer’s Demurrer and Motion to Strike Amended Answer is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiff Lloyd Byers (“Plaintiff”) filed the instant action for breach of contract, conversion, trespass to chattles, fraud, infliction of emotional distress, and related claims against Defendant Norman Lee Shertell aka Norm Shertell (“Defendant”) on April 2, 2019. Defendant filed an Answer to the Complaint on September 24, 2019. On December 1, 2021, the Court denied Defendant’s Motion to Reclassify this action to a court of limited jurisdiction. (Minute Order, 12/01/21.) Upon reconsideration, however, the Motion to Reclassify was granted on February 14, 2022. (Minute Order, 02/14/22.)

Plaintiff filed a Motion for Judgment on the Pleadings with respect to the Answer, which the Court granted with leave to amend on January 4, 2023. Defendant filed an Amended Answer on January 11, 2023.

Plaintiff now brings the instant Demurrer to and Motion to Strike the Amended Answer filed on February 21, 2023. Defendant filed an opposition on March 1, 2023 and Plaintiff relied on March 8, 2023.

A demurrer and motion to strike must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 430.41, subd. (a); 435.5, subd. (a). The instant Demurrer and Motion to Strike does not include a meet and confer declaration, as required. Plaintiff was previously made aware of the meet and confer requirement when challenging pleadings, as indicated in the Court’s ruling on the Motion for Judgment on the Pleadings. (Minute Order, 01/04/23.) The Court exercised its direction to allow the Motion for Judgment on the Pleadings to proceed without a meet and confer, and will do so again. However, any further failures to comply with the meet and confer pre-requisite will result in the Court striking the improperly filed challenge to the pleadings.

Plaintiff first demurs to the entire Amended Answer pursuant to Code of Civil Procedure section 430.20, subdivisions (a), (b) and (c), and section 128.7 because it was not filed or served until January 24, 2023 and is being used to delay the proceedings and gain an unfair advantage. Code of Civil Procedure section 430.20, subdivisions (a), (b) and (c) state that an answer can be objected to, respectively, because of failure to state facts sufficient to constitute a defense, uncertainty, and because it cannot be ascertained whether an alleged contract is written or oral. (Code Civ. Proc., § 403.20, subds. (a), (b), (c).) None of these grounds pertain to late service and filing of the Amended Answer, however, and cannot support this basis for demurrer. Also, an objection based on Code of Civil Procedure section 128.7 is not grounds of demurrer, but for sanctions.

Plaintiff next demurs to affirmative defenses numbers 4, 5, 6, 8, 9, 10, 11 and 12 pursuant to Code of Civil Procedure section 431.30, subdivision (c) on the grounds that “affirmative relief may not be claimed in an answer.” The Demurrer, however, does not indicate what specific allegations in these affirmative defenses seek affirmative defense such that they are improper.

Third, the Demurrer is brought on the grounds that the Amended Answer still fails to provide new facts to correct the defects in the original Answer, including failing to identify the specific causes of action to which the affirmative defenses apply and the specific conduct that is relevant to the affirmative defenses. The Court agrees that the Amended Answer has failed to correct the defects in the affirmative defenses as explained in the ruling on the Motion for Judgment on the Pleadings. (Minute Order, 01/04/23.) In that ruling Court articulated the specific factual standard for affirmative defenses, yet the Amended Answer continues to rely on conclusions that recite the legal basis of each defense. Nor has Defendant shown in opposition to the Demurrer what specific allegations provide a factual basis for the affirmative defenses. (Opp., p. 2:16-20.) Defendant’s remaining arguments, including that the Demurrer is untimely, provide no citation to legal authority. (Id. at pp. 1:23-3:3.) Accordingly, the Demurrer to all the affirmative answers is sustained.

Defendant was previously provided an opportunity to amend the Answer and not done so, nor provided argument as to how the Amended Answer can be corrected. Therefore, leave to amend is denied. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Plaintiff Lloyd Byer’s Demurrer and Motion to Strike Amended Answer is SUSTAINED WITHOUT LEAVE TO AMEND.