Judge: Mark E. Windham, Case: 23STLC00031, Date: 2023-03-29 Tentative Ruling
Case Number: 23STLC00031 Hearing Date: March 29, 2023 Dept: 26
Chappell v. Capital One, NA, et al.
DEMURRER
(CCP §§ 430.31, et seq., 426.30, 428.50)
TENTATIVE RULING:
Plaintiff Erica Chappell’s
Demurrer to the Answer is OVERRULED.
ANALYSIS:
Plaintiff Erica
Chappell (“Plaintiff”) filed the instant action for violations of the Rosenthal
Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. and the
California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785.25(a)
against LVNV Funding, LLC, The Law Offices of Harris and Zide, LLP (“Defendant
Harris and Zide”) and Capital One, N.A, on January 3, 2023. Defendant Harris
and Zide filed its Answer on February 17, 2023.
On March 6, 2023,
Plaintiff filed the instant Demurrer to the Answer. No opposition has been
filed to date.
Discussion
First, Plaintiff’s meet and confer effort is not sufficient. Plaintiff’s
counsel sent a letter to counsel for Defendant Harris and Zide that merely
reiterates each affirmative defenses and states that the defense is uncertain.
(Demurrer, Robenzadeh Decl., Exh. B.) Merely stating that the defenses
are uncertain does not identify the basis of the purported deficiencies, as
required by the meet and confer statute. (See Code Civ. Proc., § 430.41, subd.
(a)(1).) Plaintiff’s counsel also called defense counsel on March 2, 2023 but
does not indicate if any message was left. (Id. at ¶7.) The instant
Demurrer was filed two court days later.
Substantively, the Demurrer is brought against the Answer
for uncertainty and failure to allege sufficient facts as to the first through
seventh affirmative defenses. (Citing Code Civ. Proc., § 430.10, subds. (e),
(f).). In order to sufficiently allege an affirmative defense in the Answer, the
same pleading of “ultimate facts” rather than evidentiary matter or legal
conclusions is required as when pleading the Complaint. (FPI Development,
Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) In other words, 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. (Ibid.)
Also, 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.” (Code Civ.
Proc., § 431.30, subd. (g).)
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. (Chadbourn, Grossman,
Van Alstyne, Cal. Pleading, § 1334, pp. 490, 491; Miller & Lux, Inc., v.
San Joaquin Light & Power Corp., 120 Cal.App. 589, 600, 8 P.2d 560.) This
requirement, however, does not mean that the allegations of the complaint, if
denied, are to be taken as true, the rule being that the demurrer to the answer
admits all issuable facts pleaded therein and eliminates all allegations of the
complaint denied by the answer. (Miller & Lux, Inc., v. San Joaquin Light
& Power Corp., supra, 120 Cal.App. p. 600, 8 P.2d 560; Sheward v. Citizens'
Water Co., 90 Cal. 635, 639, 27 P. 439; Chadbourn, Grossman, Van Alstyne, Cal.
Pleading, § 1334, p. 489.)
(South Shore Land Co. v. Petersen (1964) 226
Cal.App.2d 725, 733.)
The Complaint alleges causes of action for violations of the
Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq.
and the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code §
1785.25(a). The specific allegations are that prior to the filing of the
Complaint, Defendant contacted Plaintiff regarding collection on an alleged
consumer debt. (Compl., ¶9.) In May 2020, Plaintiff and Defendant Capital One
reached a settlement regarding the alleged debt, but despite the settlement
agreement, Defendant filed a collections action against Plaintiff. (Id.
at ¶¶9-11.) The alleged debt upon which Defendants are trying to collect is not
authorized by law because it is the subject to the settlement agreement. (Id.
at ¶12.) Defendant filed the collections action in Chatsworth, in violation of
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 16921(a)(2). (Id.
at ¶13.) The collections action is reasonably calculated and likely to result
in Plaintiff being confused, harassed and anxious, and violates multiple
provisions of the FDCPA and the RFDCPA. (Id. at ¶¶14-16.)
Plaintiff argues in the Demurrer that the affirmative
defenses in Defendant Harris and Zide’s Answer do not allege facts sufficient
to support the defenses. Starting with the first affirmative defense for
failure to allege a claim upon which relief may be granted, Defendant Harris
and Zide allege:
Plaintiff’s entire case is premised
on a purported settlement agreement “concerning this very matter.” Compl. Para.
9. However, the purported settlement agreement is not attached to the
Complaint, and the relevant terms are unknown and not alleged. For example, the
parties to the purported settlement agreement are not identified . . . .
Plaintiff has failed to plead the key terms of the alleged settlement agreement
. . . .
(Answer, ¶1.) The Demurrer does not specifically analyze the
facts alleged in the first affirmative defense regarding the failure to attach
the settlement agreement or plead its terms. Instead, Plaintiff broadly argues
that all the affirmative defense only contain legal conclusions. (Demurrer, pp.
14:9-15:12.) In fact, the Demurrer does not provide any argument regarding what
is required to plead any of the affirmative defenses and why the allegations
regarding the settlement agreement, which are repeated as to each defense, are
insufficient. (Ibid.) Plaintiff’s contention that the affirmative
defenses rely solely on legal conclusions is not accurate. Therefore, the
Demurrer does not demonstrate that Defendant Harris and Zide’s Answer and its
respective affirmative defenses fail to state sufficient facts or are
uncertain.
Conclusion
Plaintiff Erica Chappell’s Demurrer to the Answer is OVERRULED.
Court clerk to give notice.