Judge: Michael D. Washington, Case: 37-2023-00027623-CU-OR-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 07, 2024

03/08/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00027623-CU-OR-NC GLEYZAL VS SEA CLIFF HOMEOWNERS ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/26/2023

The Demurrer to Answer brought by plaintiff Jaye Gleyzal (Plaintiff) is OVERRULED. The affirmative defenses, and the factual statements within the four corners of the First Amended Answer filed by defendant Sea Cliff Homeowners Association (the HOA), are sufficiently pled.

The HOA additionally makes an argument that Plaintiff's counsel '[is] simply using this demurrer as a way to drive up their attorney costs,' and claims that '[t]his unsavory practice by counsel for the Plaintiff's [sic] is a pattern we have seen from their office in at least two other cases our firm currently has with them.' (ROA 38, p. 2:12-16.) The HOA also conclude their opposition with an argument that: 'The demurrer filed on behalf of Plaintiffs does nothing to move the litigation forward and appears to be a waste of judicial and personal resources in a case where the recovery of attorneys' fees and costs is anticipated to be the main driver of value.' (ROA 38, p. 6:25-27 (emphasis added). The Court views these arguments in light of certain guidance provided by two legal treatises: PRACTICE POINTER: A demurrer can be used to eliminate 'boilerplate' affirmative defenses that often appear in answers (e.g., 'waiver,' 'estoppel,' 'unclean hands,' etc.). But such demurrers are very rare, probably because they are not worth the cost when the same result can be achieved by serving requests for admission or standard form interrogatories seeking the bases for the affirmative defenses.

(Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 7:35.1 (emphasis added).) Reasons not to demur to an answer include the delay involved in the demurrer's being heard and ruled on. It is rare for a court to sustain a demurrer without giving the losing party time to amend the pleading.

[Internal citation.] The gain achieved by demurrer to an answer rarely outweighs the trouble and expense to the demurring plaintiff or cross-complainant, particularly when clarification of the stated defenses can be accomplished more easily through discovery...

Counsel considering a demurrer to an answer should evaluate whether a defense's validity can be appropriately tested at a later stage, e.g., by a motion for summary judgment, at a pretrial hearing, or at trial by a motion to exclude evidence...

(Denison and Wasserman, California Civil Procedure Before Trial (Cal. CEB (4th ed.) 2023) § 23.49 (emphasis added).) The Court finds the HOA's argument persuasive, though lacking in evidentiary support at this juncture.

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3094569 CASE NUMBER: CASE TITLE:  GLEYZAL VS SEA CLIFF HOMEOWNERS ASSOCIATION  37-2023-00027623-CU-OR-NC Though the HOA argues that there have been other motions of this nature brought by opposing counsel in other similar litigation, the HOA has failed to produce any evidence of such prior motions. Moreover, the mere pattern of filing similar pleadings may not prove-up the point the HOA is trying to make, as there is a certain element of motive – i.e. the driving up of attorney fees, also known as 'churning' – that needs to be proven as well. It is nonetheless somewhat persuasive on its face that a procedure identified by leading practice guides as one that should be 'rare,' or 'very rare,' would become habitual and a matter of routine, particularly when the reason for that rarity is related to cost and expense and when, due to an attorney fees statute, the party upon whom the cost and expense of utilizing that rare procedure might not be the one bringing the motion.

California law has certain procedures and boundaries for preventing motions that are motivated by what the HOA is suggesting (i.e. by an effort to 'churn' fees rather than by a focus on the merits of litigation).

Code of Civil Procedure § 128.5(a) prohibits motions made in 'bad faith' or 'solely intended to cause unnecessary delay.' Code of Civil Procedure § 128.7 prohibits an attorney from filing pleadings or motions 'primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.' Where the optics of a motion are such that the party increasing the cost of litigation also may seek to benefit from that effort to increase the cost, the concerns set forth in those two statutes may be triggered. Nonetheless, as those statutes have not been raised by the parties, they cannot be applied here; particularly as they require a 'safe harbor' opportunity to withdraw an offending pleading or motion.

What the Court can do at this juncture is note that the instant Demurrer to Answer is not well-taken. To the extent that the HOA raises concerns that it has been brought solely for the purpose of 'churning' fees that the HOA will later have to pay if it loses this litigation, the Court would not be inclined to award attorney fees for the present Demurrer to Answer under any standard that limits awards of attorney fees to those activities that constitute 'reasonable attorney fees.' (See Civil Code § 5975(c) (providing for an award of 'reasonable attorney fees' in an action to enforce governing documents).) Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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