Judge: Mel Red Recana, Case: 22STCV30277, Date: 2024-04-19 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 22STCV30277 Hearing Date: April 19, 2024 Dept: 45

Superior Court of California

County of Los Angeles

JOSHUA KING and ARIANNA RANGEL,

Plaintiffs,

vs.

PASSONS LLC; IDEAL PROPERTY AND REALTY, INC.; JESUS DIAZ; and DOES 1-100, inclusive,

Defendants.

Case No.: 22STCV30277

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: 09/15/22

Trial Date: 09/30/24

Hearing date: April 19, 2024

Moving Party: Defendant Passons LLC

Responding Party: Plaintiff Joshua King

Motion to Compel Deposition

The Court considered the moving papers, opposition, and reply.

The motion is GRANTED.

The requests for sanctions are DENIED.

Background

On September 15, 2022, Plaintiffs Joshua King (“King”) and Arianna Rangel (“Rangel”) (collectively “Plaintiffs”) filed a Complaint against Defendants Passons LLC; Ideal Property and Realty, Inc.; Jesus Diaz (“Defendants”); and DOES 1-100, inclusive for: (1) Violation of California Civil Code § 1942.4; (2) Tortious Breach of the Warranty of Habitability; (3) Private Nuisance; (4) Business and Professions Code § 17200, et seq.; (5) Negligence; (6) Breach of Covenant of Quiet Enjoyment; (7) Intentional Infliction of Emotional Distress; (8) Negligence Per Se; (9) Negligent Hiring, Retention, and Supervision; and (10) Breach of Contract.

On June 15, 2023, Defendant Passons LLC (“Passons”) filed the instant Motion to Compel Deposition of Plaintiff Joshua King. On November 13, 2023, Plaintiff King filed an opposition. On December 7, 2023, Defendant Passons filed a reply.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure Section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc., § 2025.410, subd. (b).)

Pursuant to Code of Civil Procedure Section 2025.450, subdivision (a),¿“If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document . . . described in the deposition notice, the party giving the notice may move for an order¿compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”¿ (Code Civ. Proc., § 2025.450, subd. (a).)¿

Discussion

Meet and Confer

Pursuant to Code of Civil Procedure Section 2025.450, subdivision (b), “A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿¿(Code Civ. Proc., § 2025.450, subd. (b).)¿

Here, Defendant Passons advance the declaration of its counsel of record, Mark Derflinger discussing his emails to Plaintiff King’s counsel to alert that the deposition was set for May 30, 2023. (Derflinger Decl. ¶ 3, Ex. 2.) Derflinger avers that a deposition notice was served on Plaintiff King but the exhibit attached to the declaration is a deposition notice for Plaintiff Rangel. (Id. ¶ 2, Ex. 1.) Furthermore, Derflinger avers that a certificate of nonappearance was prepared on May 30, 2023, but this certificate appears to be for Plaintiff Rangel not Plaintiff King, who is the subject of this present motion. (Id. ¶ 4, Ex. 3.) As such, it is unclear whether or not Plaintiff King was actually given proper notice of the deposition. Derflinger also states Plaintiff King did not appear for the deposition, however, there is no indication of Derflinger inquiring about non-appearance. (Id. ¶ 2.) Additionally, there is no indication that Derflinger attempted to meet and confer prior to bringing forth this motion.

Therefore, Defendant Passons’ declaration is insufficient at this time and noncompliant with the Code of Civil Procedure Section 2023.450, subdivision (b). Nonetheless, the Court will exercise its discretion and consider the motion below but admonishes the parties to comply with the requirements of the Code of Civil Procedure going forward.

Motion to Compel Deposition

Defendant Passons moves for an order compelling Plaintiff King to appear for deposition and compel certain documents. Defendant Passons argues the information sought is highly relevant and appropriately discoverable. Defendant Passons also argues Plaintiff King has personal knowledge of the alleged incident and his counsel agreed to produce him for the May 30, 2023 deposition.

In opposition, Plaintiff King argues the moving papers are substantively and procedurally defective. Specifically, Plaintiff King contends the supporting declaration fails to set forth specific facts showing good cause for production of documents and fails to state that defense counsel contacted Plaintiff King to inquire about nonappearance. Furthermore, Plaintiff King asserts that he submitted timely objections to the unilateral deposition notice on April 20, 2023, via email to defense counsel, more than a month before the deposition was set to be executed. Finally, Plaintiff King contends Defendant Passons ignored his provision of alternative dates and good faith meet and confer attempt.

In reply, Defendant Passons contends the underlying motion is proper and necessary because the deposition was properly set, Plaintiff King did not appear, and Plaintiff King’s counsel made no effort to inform of their absence. Furthermore, Defendant Passons argues the allegedly mailed objections have not yet been received despite the alleged mailing date of November 13, 2023. Similarly, Defendant Passons argues between April and December, Plaintiff King’s counsel was no longer able to improperly serve electronically and only allegedly serve via mail. Lastly, Defendant Passons asserts Plaintiff King’s counsel did not provide that alternative dates to the deposition.

The Court finds that the deposition notice was served on Plaintiff King for a deposition date of May 23, 2023. Although Defendant Passons contends Plaintiff King’s counsel agreed to the deposition date, no evidence provided substantiates that claim. Also, Defendant Passons presented evidence that showcases it never inquired about nonappearance and made no attempt to meet and confer regarding the deposition. Furthermore, Plaintiff King’s objections appeared to have been served electronically on April 20, 2023 and the email addresses match those of Defendant Passons’ counsel of record. (Partiyeli Decl. ¶ 4, Ex. 1.) Moreover, Plaintiff King’s objections requested a meet and confer to find alternative dates. (Id.) Additionally, Plaintiff King’s objections indicated that he would not appear for the deposition. However, Plaintiff King does not provide the email purported to have effectuated service of the objections on Defendant Passons. Likewise, Defendant Passons provides an email alerting to Plaintiff Rangel’s’ deposition not Plaintiff King’s deposition, which does not substantiate its claims that Plaintiff King’s counsel was alerted to his deposition and put on notice that no objections were made. Nevertheless, Plaintiff King did not appear for the noticed deposition, it is unclear whether his objections were received by Defendant Passons (it contends they were not), and Defendant Passons has demonstrated that his deposition is necessary for preparation of trial, which is four months away.

Therefore, the motion to compel deposition of Plaintiff Joshua King is GRANTED.

Request for Monetary Sanctions

If a motion under Code of Civil Procedure¿2025.450, subdivision (a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §¿2025.450, subd. (g)(1).)

Defendant Passons seeks sanctions against Plaintiff King in the amount of $2,210.00 for (1) 4.5 hours researching, drafting, meet and confer, and gathering exhibits for this motion; (2) 2.5 hours attending the hearing for an hourly rate of $215.00 per hour; and $60.00 filing fee. Defendant Passons contends Plaintiff King is not justified in refusing to present for deposition and wants to engage in gamesmanship. However, the circumstances surrounding whether Plaintiff King served objections to the deposition, the lack of meet and confer efforts, and lack of proof that Defendant Passons inquired about nonappearance makes imposition of sanctions unjust at this time.

Plaintiff King’s counsel of record seeks sanctions against Defendant Passons for $ for (1) 2.0 hours collectively for this present motion and the separate motion to compel deposition of Plaintiff Rangel and (2) 1.0 hour for attending and preparing for the hearing at an hourly rate of $450.00 per hour. As discussed above, the circumstances surrounding Plaintiff King’s objections make the imposition of sanctions at this time unjust.

Therefore, both requests for sanctions are DENIED.

It is so ordered.

Dated: April 19, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court

Superior Court of California

County of Los Angeles

JOSHUA KING and ARIANNA RANGEL,

Plaintiffs,

vs.

PASSONS LLC; IDEAL PROPERTY AND REALTY, INC.; JESUS DIAZ; and DOES 1-100, inclusive,

Defendants.

Case No.: 22STCV30277

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: 09/15/22

Trial Date: 09/30/24

Hearing date: April 19

, 2024

Moving Party: Defendant Passons LLC

Responding Party: Plaintiff Arianna Rangel

Motion to Compel Deposition

The Court considered the moving papers, opposition, and reply.

The motion is GRANTED.

The requests for sanctions are DENIED.

Background

On June 15, 2023, Defendant Passons LLC (“Passons”) filed the instant Motion to Compel Deposition of Plaintiff Arianna Rangel. On November 13, 2023, Plaintiff Rangel filed an opposition. On December 7, 2023, Defendant Passons filed a reply.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Discussion

Meet and Confer

Here, Defendant Passons advance the declaration of its counsel of record, Mark Derflinger discussing his emails to Plaintiff Rangel’s counsel to alert that the deposition was set for May 31, 2023. (Derflinger Decl. ¶ 3, Ex. 2.) Derflinger avers that a deposition notice was served on Plaintiff Rangel on March 21, 2023. (Id. ¶ 2, Ex. 1.) Furthermore, Derflinger avers that a certificate of nonappearance was prepared on June 4, 2023. (Id. ¶ 4, Ex. 3.) Derflinger also states Plaintiff Rangel did not appear for the deposition, however, there is no indication of Derflinger inquiring about non-appearance. (Id. ¶ 2.) Moreover, there is no indication that Derflinger attempted to meet and confer prior to bringing forth this motion.

Therefore, Defendant Passons’ declaration is insufficient and noncompliant with the Code of Civil Procedure Section 2023.450, subdivision (b). Nonetheless, the Court will exercise its discretion and consider the motion below but admonishes the parties to comply with the requirements of the Code of Civil Procedure going forward.

Motion to Compel Deposition

Defendant Passons moves for an order compelling Plaintiff Rangel to appear for deposition and compel certain documents. Defendant Passons argues the information sought is highly relevant and appropriately discoverable. Defendant Passons also argues Plaintiff Rangel has personal knowledge of the alleged incident and her counsel agreed to produce her for the May 31, 2023 deposition.

In opposition, Plaintiff Rangel argues the moving papers are substantively and procedurally defective. Specifically, Plaintiff Rangel contends the supporting declaration fails to set forth specific facts showing good cause for production of documents and fails to state that defense counsel contacted Plaintiff Rangel to inquire about nonappearance. Furthermore, Plaintiff Rangel asserts that she submitted timely objections to the unilateral deposition notice on April 20, 2023, via email to defense counsel, more than a month before the deposition was set to be executed. Finally, Plaintiff Rangel contends Defendant Passons ignored her provision of alternative dates and good faith meet and confer attempt.

In reply, Defendant Passons contends the underlying motion is procedurally proper and necessary because the deposition was properly set, Plaintiff Rangel did not appear, and Plaintiff Rangel’s counsel made no effort to inform of their absence. Furthermore, Defendant Passons argues the allegedly mailed objections have not yet been received despite the alleged mailing date of November 13, 2023. Similarly, Defendant Passons argues between April and December, Plaintiff Rangel’s counsel was no longer able to improperly serve electronically and only allegedly serve via mail. Lastly, Defendant Passons asserts Plaintiff Rangel’s counsel did not provide that alternative dates to the deposition.

The Court finds that the deposition notice was served on Plaintiff Rangel for a deposition date of May 31, 2023. Although Defendant Passons contends Plaintiff Rangel’s counsel agreed to the deposition date, no evidence provided substantiates that claim. Also, Defendant Passons presented evidence that showcases it never inquired about nonappearance and made no attempt to meet and confer regarding the deposition. Furthermore, Plaintiff Rangel’s objections appeared to have been served electronically on April 20, 2023 and the email addresses match those of Defendant Passons’ counsel of record not on November 13, 2023 as Defendant Passons seems to allege. (Partiyeli Decl. ¶ 4, Ex. 1.) Moreover, Plaintiff Rangel’s objections requested a meet and confer to find alternative dates. (Id.) Additionally, Plaintiff Rangel’s objections indicated that she would not appear for the deposition. However, Plaintiff Rangel does not provide the email purported to have effectuated service of the objections on Defendant Passons. By contrast, Defendant Passons provides an email alerting to Plaintiff Rangel’s’ deposition, which demonstrates that Plaintiff Rangel’s counsel was put on notice that potentially no objections had been received by Defendant Passons. (Derflinger Decl. ¶ 3, Ex. 2.) Lastly, Plaintiff Rangel did not appear for the noticed deposition and Defendant Passons has demonstrated that her deposition is necessary for preparation of trial, which is four months away.

Therefore, the motion to compel deposition of Plaintiff Arianna Rangel is GRANTED.

Request for Monetary Sanctions

Defendant Passons seeks sanctions against Plaintiff Rangel in the amount of $2,210.00 for (1) 4.5 hours researching, drafting, meet and confer, and gathering exhibits for this motion; (2) 2.5 hours attending the hearing for an hourly rate of $215.00 per hour; and $60.00 filing fee. Defendant Passons contends Plaintiff Rangel is not justified in refusing to present for deposition and wants to engage in gamesmanship. However, the circumstances surrounding whether Plaintiff Rangel’s objections were served, lack of meet and confer efforts, and lack of proof that Defendant Passons inquired about nonappearance makes imposition of sanctions unjust at this time.

Plaintiff Rangel’s counsel of record seeks sanctions against Defendant Passons for $ for (1) 2.0 hours collectively for this present motion and the separate motion to compel deposition of Plaintiff King and (2) 1.0 hour for attending and preparing for the hearing at an hourly rate of $450.00 per hour. However, the circumstances surrounding whether Plaintiff Rangel’s objections were served make the imposition of sanctions at this time unjust.

Therefore, both requests for sanctions are DENIED.

It is so ordered.

Dated: April 19, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court

County
of Los Angeles

JOSHUA
KING and ARIANNA RANGEL,

Plaintiffs,

vs.

PASSONS
LLC; IDEAL PROPERTY AND REALTY, INC.; JESUS DIAZ; and DOES 1-100, inclusive,

Defendants.

Case No.: 22STCV30277

DEPARTMENT
45

[TENTATIVE] RULING

Action
Filed: 09/15/22

Trial
Date: 09/30/24

Hearing
date: April 19, 2024

Moving
Party: Plaintiffs Joshua King and
Arianna Rangel

Responding
Party: Defendant Passons LLC

Demurrer
to Answer to Complaint

The Court
considered the moving papers, opposition, and reply.

The
demurrer is OVERRULED IN PART as to the third, fifteenth, sixteenth,
seventeenth, eighteenth, nineteenth, twentieth, twenty-fifth, thirty-first, and
thirty-fourth affirmative defenses and SUSTAINED IN PART with 20 days Leave to Amend as to the thirty-second affirmative
defense.

Background

On September 15,
2022, Plaintiffs Joshua King (“King”) and Arianna Rangel (“Rangel”)
(collectively “Plaintiffs”) filed a Complaint against Defendants Passons LLC;
Ideal Property and Realty, Inc.; Jesus Diaz (“Defendants”); and DOES 1-100,
inclusive for: (1) Violation of California Civil Code § 1942.4; (2) Tortious
Breach of the Warranty of Habitability; (3) Private Nuisance; (4) Business and
Professions Code § 17200, et seq.; (5) Negligence; (6) Breach of
Covenant of Quiet Enjoyment; (7) Intentional Infliction of Emotional Distress;
(8)
Negligence Per Se; (9) Negligent Hiring, Retention, and Supervision; and (10)
Breach of Contract.

On February 14,
2023, Defendant Passons LLC (“Passons”) filed an Answer to the Complaint.

On February 27,
2023, Plaintiffs filed the instant Demurrer to Answer to Complaint. On December
22, 2023, Defendant Passons filed an opposition. On December 26, 2023,
Plaintiffs filed a reply.

Legal
Standard

A demurrer can
be used only to challenge defects that appear on the face of the pleading under
attack; or from matters outside the pleading that are judicially noticeable. (Blank
v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be
considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson
(1980) 110 Cal.App.3d 868, 881.)

A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal. App. 4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216,
1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal. App. 4th 968, 994.)
“A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies
only where the defects appear on the face of the pleading or are judicially
noticed.” (SKF Farms v. Superior Ct.
(1984) 153 Cal. App. 3d 902, 905.) “The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)

Discussion

Meet
and Confer

Per Code of
Civil Procedure section 430.41, subdivision (a), the parties were required to
meet and confer in person or by telephone before bringing this demurrer. (Code
Civ. Proc., § 430.41, subd. (a).)

Plaintiffs
advance the declaration of their counsel of record, Jacob O. Partiyeli,
discussing his meet and confer efforts with defense counsel prior to bringing
forth this instant demurrer. Partiyeli declares that he telephoned defense
counsel, Bordin Summer LLP on February 16, 2023 and left a message asking for a
call back to meet and confer about the potential demurrer to the answer in this
case. (Partiyeli Decl. ¶ 3.) Furthermore, Partiyeli declares he telephoned
defense counsel the following day and left another message for a call back to
discuss the possible demurrer. (Id.) Additionally, Partiyeli avers that
he identified the defenses to which it would relate and the portions of the
pleading to which it would it relate and provided legal authority. (Id.)
Additionally, Partiyeli attests that no call back was ever obtained. (Id.)
However, there is no indication that Partiyeli attempted to follow-up with an
email or letter to defense counsel to put him on notice of the purported
telephone calls and voice messages.

Therefore,
Plaintiffs have not sufficiently met and conferred with defense counsel
regarding the instant demurrer. Nevertheless, the Court may not overrule a
demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41,
subd. (a)(4).) The Court will still consider the demurrer but admonishes the
parties to comply with the requirements of the Code of Civil Procedure going
forward.

Demurrer

Plaintiffs
demur to the third, fifteenth, sixteenth, seventh, eighteenth, nineteenth,
twentieth, twenty-fifth, thirty-first, thirty-second, and thirty-fourth
affirmative defenses on the grounds that they are (1) uncertain and (2) fails
to allege facts sufficient to state a defense.

Third
Affirmative Defense for Apportionment of Fault

A
demurrer for uncertainty means the pleading is ambiguous or unintelligible.
(Code Civ. Proc., § 430.10, subd. (f).) “A demurrer for uncertainty is strictly
construed, even where a complaint is in some respects uncertain, because
ambiguities can be clarified under modern discovery procedures.” (Khoury v.
Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) ““ ‘[D]emurrers
for uncertainty are disfavored, and are granted only if the pleading is so
incomprehensible that a defendant cannot reasonably respond.’ ” (A.J. Fistes
Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Plaintiffs
contend Defendant Passons’ Third Affirmative Defense for Apportionment of Fault
is uncertain because it cannot be ascertained who are the “cross-complainants”
and who are the “third persons” or the other defendants or cross-defendants
being referenced.

The
Answer alleges Plaintiffs, cross-complainants, third persons and the other
defendant and cross-defendant, named or unnamed herein, were careless and
negligent in and about the matters alleged in the Complaint, and said
carelessness and negligence proximately contributed to the happening of the
accident and to the injuries, loss and damage, if any, complained of by
Plaintiffs. (Ans. ¶ 3.)

The Court finds
that this pleading is not so incomprehensible that Plaintiffs cannot reasonably
ascertain who is being referenced. The Answer title includes the names of the
other defendants and DOES 1-100, inclusive. As such, the defense is responsive
to Plaintiffs’ own Complaint.

Therefore, the
demurrer to the Third Affirmative Defense is OVERRULED.

Fifteenth
Affirmative Defense for Laches

“A
defendant must demonstrate three elements to successfully assert a laches
defense: (1) delay in asserting a right or a claim; (2) the delay was not
reasonable or excusable; and (3) prejudice to the party against whom laches is
asserted.” (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153
Cal.App.4^th 1144, 1157.)

Plaintiffs
contend Defendant Passons’ Fifteenth Affirmative Defense for Laches is
uncertain because it cannot be ascertained when Plaintiffs allegedly delayed,
or how or in what manner, Defendant Passons’ suffered prejudice therefrom. Plaintiffs
also contend Defendant Passons’ fails to allege facts sufficient to state a
defense.

The Answer
alleges Plaintiffs, by the statements, conduct, acts, omissions and
acquiescence attributable to him, engaged in unreasonable delay in not seeking
the recovery and remedies which are the subject of Plaintiffs’ Complaint,
thereby caused undue prejudice to the answering Defendant, to the end that all
of the claims and causes of action contained in Plaintiffs’ Complaint are
barred by the doctrine of laches. (Ans. ¶ 15.)

The Court finds
that this pleading is not so incomprehensible or unintelligible that Plaintiffs
are not put on notice of the defense being raised. Furthermore, the Answer
sufficiently states a defense for laches. Specifically, the Answer pleads that
Plaintiffs unreasonably delayed seeking recovery and remedies for the claims
asserted in their Complaint and that Defendant Passons was prejudiced by
Plaintiffs’ conduct.

Therefore, the
demurrer to the Fifteenth Affirmative Defense is OVERRULED.

Sixteenth
Affirmative Defense for Estoppel

“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.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725,
733.)

“The
doctrine of equitable estoppel has four elements: (1) the party to be estopped
was apprised of the true facts as to which the estoppel is claimed; (2) the
party to be estopped intended that the other party act upon his or her conduct;
(3) the party claiming the estoppel was ignorant of the true facts; and (4) the
party claiming the estoppel suffered injury by relying upon the conduct of the
party to be estopped.” (Escondido Union School Dist. v. Casa Suenos De Oro,
Inc. (2005) 129 Cal.App.4th 944,
968.)

Plaintiffs
contend Defendant Passons’ fails to allege facts sufficient to state a defense
for the doctrine of estoppel.

The
Answer alleges Plaintiffs, by the statements, conduct, acts, omissions and
acquiescence attributable to their, is estopped from seeking any recovery or
remedy as alleged in Plaintiffs’ Complaint. (Ans. ¶ 16.)

The
Court finds that the pleading is not so incomprehensible and unintelligible
that Plaintiffs cannot ascertain that Defendant Passons’ defense for estoppel
relates to the allegations set forth in Plaintiffs’ Complaint. In fact, the
pleading references Plaintiffs’ Complaint as the source of the statements,
conduct, acts, omissions and acquiescence by Plaintiffs’ that is to be
estopped. As such, the Answer sufficiently states a defense for estoppel.

Therefore, the
demurrer to the Sixteenth Affirmative Defense is OVERRULED.

Seventeenth
Affirmative Defense for Waiver

“[W]aiver is the
intentional relinquishment of a known right after knowledge of the facts.” (Munoz
v. express Auto Sales (2014) 222 Cal.App.4th Supp.1, 11 [internal citations
omitted].)

Plaintiffs
contend Defendant Passons’ fails to allege facts sufficient to state a defense
for waiver.

The
Answer alleges Plaintiffs, by the statements, conduct, acts, omissions and
acquiescence attributable to him, has waived all claims and causes of action
and recovery or remedy as alleged in Plaintiffs’ Complaint. (Ans. ¶ 17.) The
Answer further alleges Plaintiffs have engaged in conduct and activity
sufficient to constitute a waiver of any alleged negligence, act, omission, or
any other conduct, if any, as set forth in Plaintiffs’ Complaint. (Id.)

The Court finds
that the pleading sufficiently states a defense for waiving. Specifically, the
Answer alleges that Plaintiffs’ waived any alleged negligence, act, omission,
or any other conduct as set forth in their Complaint because of the facts they
allege in their Complaint.

Therefore, the
demurrer to the Seventeenth Affirmative Defense is OVERRULED.

Eighteenth
Affirmative Defense for Unclean Hands

“Not every
wrongful act constitutes unclean hands. But, the misconduct need not be a crime
or an actionable tort. Any conduct that violates conscience, or good faith, or
other equitable standards of conduct is sufficient cause to invoke the
doctrine.” (Meridian Financial Services, Inc. v. Phan (2021) 67
Cal.App.5th 657, 685.)

Plaintiffs
contend Defendant Passons’ fails to allege facts sufficient to state a defense
for unclean hands.

The
Answer alleges Plaintiffs, by the statements, conduct,
acts, omissions and acquiescence attributable to their, is precluded by the
doctrine of unclean hands from seeking any recovery or remedy as alleged in
Plaintiffs’ Complaint. (Ans. ¶ 18.)

The
Court finds that the pleading sufficiently states a defense for unclean hands.
Specifically, the Answer pleads the statements, conduct, acts, omissions and
acquiescence by Plaintiffs as set forth in their Complaint is precludes any
recovery of remedies sought under the doctrine of unclean hands.

Therefore,
the demurrer to the Eighteenth Affirmative Defense is OEVRRULED.

Nineteenth
Affirmative Defense for Superseding Cause

Plaintiffs
contend Defendant Passons’ Nineteenth Affirmative Defense for Superseding Cause
is uncertain because cannot be ascertained what were the intervening or
superseding causes, and what acts or omissions of persons other than Defendant
Passons’ are alleged to be superseding causes.

The Answer
alleges if Plaintiffs have suffered any damages or harm, which is expressly
denied, said damages or harm was the proximate result of the intervening and
superseding acts and omissions of persons other than the answering Defendant,
and not the act or omission of the answering Defendant, thereby barring
Plaintiffs from seeking any recovery or remedy as alleged in Plaintiffs’
Complaint. (Ans. ¶ 19.)

Twentieth
Affirmative Defense for Off-Set

Offset
is an affirmative defense that “affects the right to recover damages.” (McMillian
Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518,
534-35.)

Plaintiffs
contend Defendant Passons’ fails to allege facts sufficient to state a defense
for offset.

The Answer
alleges by virtue of the statements, conduct, acts, omissions and acquiescence
attributable to Plaintiffs the answering Defendant has incurred damages and
expenses, all in the amounts to be ascertained
according to proof at trial, and applied as an offset against the claims and
causes of action contained in Plaintiffs’
Complaint. (Ans. ¶ 20.)

The Court finds
that the pleading sufficiently states a defense for offset. Specifically, the
Answer alleges Defendant Passons has incurred damages and expenses which apply
as an offset to the claims and causes of action asserted by Plaintiffs’
Complaint.

Therefore, the
demurrer to the Twentieth Affirmative Defense is OVERRULED.

Twenty-Fifth
Affirmative Defense for Complaint is Barred

Plaintiffs
contend Defendant Passons’ Twenty-Fifth Affirmative Defense for is uncertain
because it cannot be ascertained when, how or in what manner, Plaintiffs
allegedly violated Civil Code, Section 1941.2, or how it is barred thereto.

The Answer
alleges Plaintiffs’ Complaint is barred, including but not limited to, by
virtue of Plaintiffs’ violation of California Civil Code § 1941.2. (Ans. ¶
1941.2.)

The Court finds
that the pleading is not so incomprehensible or unintelligible that Plaintiffs
cannot ascertain what Civil Code Section is being invoked as a defense to their
claims as referenced in their Complaint.

Therefore, the
demurrer to the Twenty-Fifth Affirmative Defense is OVERRULED.

Thirty-First
Affirmative Defense for Failure to Comply with Code

Plaintiffs
contend Defendant Passons’ Thirty-First Affirmative Defense for is uncertain
because it cannot be ascertained when, how, or in what manner the code sections
were violated.

The Answer
alleges Plaintiffs have failed to comply with the provisions of California
Civil Code §§ 1928, 1929, 1930, 1931 and 1941.2. (Ans. ¶ 31.)

The Court finds
that the pleading is not so incomprehensible and unintelligible that Plaintiffs
cannot ascertain what Civil Code Sections are being invoked as a defense to
their claims as referenced in their Complaint.

Therefore,
the demurrer to the Thirty-First Affirmative Defense is OVERRULED.

Thirty-Second
Affirmative Defense for Performance of Contract Excused

Plaintiffs
contend Defendant Passons’ Thirty-Second Affirmative Defense for is uncertain
because it cannot be ascertained how, when, or in what manner, defendant’s
performance was excused or prevented or who the “other parties” are alleged to
be. Plaintiffs also contend Defendant Passons’ fails to allege facts sufficient
to state a defense.

The Answer
alleges the performance of any contract alleged in the Complaint was excused or
prevented by the actions of other parties. (Ans. ¶ 32.)

The Court finds
that the pleading is unintelligible such that Plaintiffs cannot ascertain in
what manner Defendant Passons’ performance was excused or prevented including
but not limited to frustration of purpose, impossibility, impracticability,
etc. It is also unclear if the “other parties” concern those named or unnamed
in the Complaint such as the other defendants and unidentified Doe defendants.

Therefore, the
demurrer to the Thirty-Second Affirmative Defense is SUSTAINED with Leave to
Amend.

Thirty-Fourth
Affirmative Defense for Complaint is Barred

Plaintiffs
contend Defendant Passons’ Thirty-Fourth Affirmative Defense for is uncertain
because it cannot be ascertained how, when, or in what manner, Plaintiffs
violated Civil Code Section 1941.2, or why such acts were barred and by what
section codes therein.

The Answer
alleges Plaintiffs’ Complaint is barred by Plaintiffs’ violations under Cal.
Civ. Code section 1941.2. (Ans. ¶ 34.)

Therefore, the
demurrer to the Thirty-Fourth Affirmative Defense is OVERRULED.

It
is so ordered.

Dated: April 19, 2024

_______________________

ROLF M. TREU

Judge of the
Superior Court