Judge: Mark H. Epstein, Case: SC128845, Date: 2023-02-15 Tentative Ruling

Case Number: SC128845    Hearing Date: February 15, 2023    Dept: R

In one of its (too many) recent rulings, the court gave some preliminary thought concerning the answer.  Among other things, the court noted how the court believed it was clear at the hearing that the answer had to be more than a general denial and that defendant Farzaneh would have one and only one shot at drafting it.  The court also noted, however, that the written order was not so clear.  The court further pointed out that plaintiffs had not met and conferred concerning their demurrer to the answer and that the failure to do so would more than likely result in a continuance of the demurrer.

The moving papers were straightforward.  Plaintiffs’ position was set forth plainly and without undue acrimony.  While it is true that the relief sought was that the answer be stricken, given the odd circumstances of this case, that is simply what plaintiffs sought and they set forth their reasons therefor.

The opposition, however, ran off the rails at least in part.  Much of it was a personal attack on plaintiffs’ counsel, or at least the firm.  Relying and quoting extensively from an unpublished Court of Appeal decision, defense counsel—representing a party who ignored the case for four years after being served and then filed two declarations that the court found to be not credible—simply went on the offensive.  It was improper and uncalled for and, the court believes, a deliberate attempt to elevate hostilities and bait plaintiffs’ counsel.  Given that, it is not too surprising that defendant’s counsel’s misconduct led to an angry reply (although much of the anger was not directed solely to Farzaneh’s counsel).

The bottom line is this.  The court, using its equitable authority, allowed Farzaneh to participate in this litigation even though he had done absolutely nothing for four years.  The court did so because his default had not been entered in four years due to an error by plaintiff.  The court believed that to leave Farzaneh in the position of potentially being the only liable party (or one of two liable parties because there was another party who had been defaulted) under those circumstances (because the defendants might prevail at trial) was unjust and inequitable even though Farzeneh’s declarations were not believed.  The court conditioned its ruling on certain things.  One of them, in the narrative but clearly enough enumerated, was that Farzaneh provide in the answer that which he should have provided were the court to have ordered him to file a motion for relief from default (oddly, he filed only an application to shorten time on a motion not yet filed): some basis to believe that there could be a meritorious defense.  Even though the narrative was plain and became plainer at argument, the enumerated portion or the order was not, and the court can understand why Farzaneh’s counsel could believe that a general denial is sufficient.  Under normal circumstances, it is sufficient unless the complaint is verified (and this one is not).  However, the court has the equitable power to require as a condition for relief from default that a party submit an answer that is more robust, at least where the basis for granting the motion is equitable as opposed to a Code requirement.  That is what the court did here, albeit not as clearly as perhaps should have been done.

The court’s thinking is that the parties ought to meet and confer and see if they can come to some agreement that will moot out the issue as to the denial now that the court has clarified the condition for its order granting relief from default.  The court believes that this will require more than a general denial given Farzaneh’s utter lack of participation for four years and the very limited discovery that plaintiffs will have at their disposal regarding him (the court did allow him to be deposed and for plaintiffs to demand documents as part of that deposition).  Chapter and verse is not required; the court never sought that kind of granularity.  What the court was looking for was some kind of a factual statement that, if true, would show a viable defense.  Hopefully, with even a little bit of good faith, that can be accomplished.  Even if full agreement is not reached, Farzaneh can essentially moot out the demurrer by filing such an amended answer before the hearing.

The situation is different as to the affirmative defenses.  They stand or fall as pled.  Here is the court’s ruling on them.

1—SUSTAINED.  This is not an affirmative defense.  2—SUSTAINED.  This is an equitable defense; facts must be alleged and they are not.  If Farzaneh does not have facts, he ought not allege the defense.  3—SUSTAINED.  This too is an equitable defense and must be supported.  The court agrees that the defense, though equitable, is available in cases sounding at law, but it still must be pled with some factual support.  4—SUSTAINED.  The defense is so vague and uncertain that the court cannot tell what is being asserted.  5—SUSTAINED.  Laches is an equitable defense and must be pled with facts.  To the extent that the facts are that plaintiffs waited so long to bring the case to trial, the court does not even know what that means.  Plaintiffs sued Farzaneh in a timely fashion—Farzaneh does not contend to the contrary (which is what laches means, typically).  Rather, he seems to be complaining that the case has not already been tried.  That is not a laches defense.  6—OVERRULED.  The gist of this is that the Santa Monica Rent Control Board hearing constitutes res judicata or collateral estoppel.  That is pled with enough particularity to survive a pleading motion given the fact that plaintiffs know exactly what happened at that hearing; no discovery by plaintiff is needed.  7—OVERRULED.  Again, this is based on an allegation that the relief given by the Rent Control Board should be offset as against any judgment.  The court is far from convinced that Farzaneh is right about that as a practical matter, but it survives this attack.  Plaintiffs know what relief they were given; it is hardly a surprise and there is no discovery plaintiffs need on this issue.  8—SUSTAINED.  The court is not sure that “good faith” is an affirmative defense at all to the causes of action against Farzaneh or any of them.  If plaintiffs can make out their prima facie case, then this would not appear to be a defense to it.  9—SUSTAINED.  Normally the court would be likely to overrule the attack, but Farzaneh does not state what the privilege is.  That failure leaves plaintiffs in the dark after the discovery cut off has come and gone and on the eve of trial.  It is not proper.  10—OVERRULED.  This is failure to mitigate.  It is an affirmative defense and a legal one.  While in a perfect world it might be nice if more detail were given, plaintiffs themselves know what they did or did not do to mitigate their damages.  If Farzaneh can establish that they did not, he can assert the defense.  (Further, this is likely to be duplicative of a failure to mitigate as raised by the other defendants and it makes no sense to allow those defendants to reduce any liability due thereto but not allow Farzaneh to do the same on the very same conduct or omission; at a minimum he would move to conform to proof at the end of the case).  11—SUSTAINED.  Waiver is an equitable defense and must be pled based on facts.  12—SUSTAINED.  This is not an affirmative defense; standing is part of plaintiffs’ affirmative case.  13—OVERRULED.  To the extent plaintiffs are at fault, Farzaneh is entitled to the benefit of that.  And to the extent other defendants are at fault, he is entitled to the benefit of that as well.  14—OVERRULED.  While the court has doubts as to whether Farzaneh will be able to prove that plaintiffs actually consented to the allegedly wrongful conduct, it is hard to articulate why he ought not to be able to plead it.  15—SUSTAINED.  In contrast with some of the other defenses, “intervening cause” to the extent it is different from comparative fault requires more than mere incantation of the words.  Farzaneh needed to state what the cause was.  16—SUSTAINED.  The statute of limitations must be pled with particularity as to the specific statute that governs.  Farzaneh did not do so.  17—STRICKEN.  This is a statement that Farzaneh may raise other affirmative defenses in the future.  He may seek leave to do so if appropriate, but it does not belong in an answer.

As the court stated before, there will be no leave to amend as to the affirmative defenses.  There was no ambiguity in the court’s order there.  Farzaneh was told to do it right the first time.  The court assumes that this is the best he could do.  Given that discovery has closed and the case is about to go to trial, there is undue prejudice in allowing him to try again.

Accordingly, the demurrer as to the denial only will be continued.  The court will meet and confer with counsel as to the new date; the court is looking in the three week time frame due to the court’s schedule.  The affirmative defenses are determined as above.  The court is sincerely hoping that the parties will to themselves (and the court) a favor and just get past this and start preparing for the upcoming trial.