Judge: Martha K. Gooding, Case: 2022-01249288, Date: 2022-10-31 Tentative Ruling
1) Demurrer to Answer
2) Case Management Conference
The Court sustains in part the Demurrer by Plaintiff Maxwell M. Nazari DDS Inc. to the First Amended Answer filed by Defendant Diamond Business Community Association (“HOA”) as set forth below. Defendant shall have 15 days to file a Second Amended Answer.
Legal Standard
An answer asserting an affirmative defense is subject to the same rules that apply to pleading a cause of action in a complaint. Thus, the defendant must plead ultimate facts, and when the facts must be pleaded with particularity in a complaint, it is equally necessary to plead them with particularity in an affirmative defense involving the issue. (5 Witkin, California Procedure (6th ed.), Pleading § 1122; see also FPI Development, Inc. v. Nakashima (1991 231 Cal. App. 3d 367, 384.)
There are three grounds for a demurrer to an answer: (1) the answer fails to state sufficient facts to constitute a defense; (2) the answer is uncertain (including ambiguous and unintelligible); and (3) if the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral. (CCP § 430.20; Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group June 2018 update) § 7:35.)
A general demurrer to an answer admits all facts well pleaded in the answer, including denials. (Warren v. Harootunian (1961) 189 Cal.App.2d 546, 548.)
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. Nakashima (1991) 231 Cal.App.3d 367, 384; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, supra, § 6:459.) An exception to this rule is the statute of limitations under CCP § 458. (CCP § 458; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, supra, §§ 7:51.1, 6:462.)
There are, however, differences between a demurrer to an answer and a complaint. “An important difference is that in the case of a demurer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the 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. 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.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733 [internal quotation marks omitted].)
Merits
The Court overrules the Demurrer as to Affirmative Defense Nos. 1, 7, 11, 16, and 22 because they are not “new matter”.
In general, whatever a defendant bears the burden of proving at trial is “new matter” (also referred to as an “affirmative defense”) and thus must be specially pleaded in the answer. (See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 [failure to plead equitable defenses waived those defenses].)
A defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384; 5 Witkin, Cal. Proc. 5th (2008) Pleading, § 1082, p. 515.)
New matter is matter alleged for the first time in the answer, creating a new issue in the case not presented by the complaint. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543; Coles v. Soulsby (1862) 21 Cal. 47, 50 (“new matter” is “that matter which the defendant must affirmatively establish”).
The affirmative form in which the defendant phrases his or her answering averments does not make them new matter. If they merely contradict essential allegations of the complaint, they are simply denials in affirmative form (“argumentative denials”). (Frisch v. Caler (1862) 21 C. 71, 74; Goddard v. Fulton (1863) 21 C. 430, 436; Rancho Santa Margarita v. Vail (1938) 11 C.2d 501, 543.)
The Court overrules the Demurrer as to Affirmative Defense Nos. 2, 3, 5, 6, 8, 9, 14, 17, 19, and 20 on the grounds that with reference to the Complaint and the facts alleged in the First Amended Answer, these affirmative defenses are adequately pled.
The Court sustains the Demurrer as to Affirmative Defense Nos. 4, 10, 12, 13, 15, 18, 21, 23, and 24.
· Nos. 13 and 23: lack of standing
California requires that the plaintiff prosecuting a case be a “real party in interest” in the litigation. (Code of Civ. Proc. § 367.)
Here, the Court finds that there are insufficient facts alleged to show a lack of standing. The Demurrer is therefore sustained with leave.
· No. 4: set off
This is an affirmative defense to a complaint on the ground that the defendant is entitled to a monetary set-off against any judgment for the plaintiff. [Code Civ. Proc., § 431.70.] Such defense is used in the body of an answer. Set-off is generally considered to be a new matter that must be specially pleaded by a defendant. [Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (19850 174 Cal. App. 3d 700, 706.]
Here, the Court finds that there are insufficient facts alleged to show a set off is warranted. The Demurrer is therefore sustained with leave.
· Nos. 10 and 12: open and obvious condition and trivial defect, respectively
These appear misplaced. They are affirmative defenses to premises liability claims, not a breach of contract/CC&Rs claim. The Demurrer is therefore sustained with leave.
· No. 15: “Proposition 51”
Under Proposition 51, although all defendants in California are liable to a plaintiff for 100% of plaintiff’s economic damages (including such things as medical expenses and lost earnings), defendants are only liable for noneconomic damages (such as physical pain, mental suffering, and emotional distress) in proportion to their fault. (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1.)
Plaintiff is not claiming emotional distress and thus this appears misplaced. The Demurrer is therefore sustained with leave.
· No. 18: spoliation of evidence
The Court finds that there are insufficient facts alleged to show spoliation of evidence or that it can be an affirmative defense. The Demurrer is therefore sustained with leave.
· No. 21 is privilege/justification
The defense of justification is dependent on the lack of unlawful or wrongful conduct by the defendant; the defense is lost if the defendant has acted through unlawful means or lawful means without justification. (Rogers v. Grua (1963) 215 Cal.App.2d 1, 8; see BAJI No. 7.86.1 (defining wrongful means with respect to privilege of competition); BAJI No. 12.78.)
The Court finds there are insufficient facts alleged to show privilege/justification or how it is applicable to the Complaint. The Demurrer is therefore sustained with leave.
· No. 24: Civil Code §6716
This is a cause of action alleged in the Complaint. Plaintiff alleges Defendant violated the CC&Rs and Civil Code §6716. This does not appear to be an affirmative defense. The Demurrer is therefore sustained with leave.
Plaintiff is ordered to give notice.