Judge: Michael E. Whitaker, Case: 21SMCV00182, Date: 2023-11-17 Tentative Ruling

Case Number: 21SMCV00182    Hearing Date: February 29, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

Plaintiff and Cross-Defendant Keyway Pride Limited LLC (“Plaintiff”) demurs to the general denial and all thirty-three affirmative defenses alleged in Defendant Chicago Title Company’s (“Defendant”) Answer to Plaintiff’s verified First Amended Complaint (“FAC”) for failure to state facts sufficient to cause a defense, pursuant to Code of Civil Procedure section 430.20, subdivision (a).  

Defendant opposes the demurrer and Plaintiff replies. 

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 430.41, subdivision (a) requires that “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” 

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1).)  “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”  (Ibid.)

“The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Code Civ. Proc. § 430.41, subd. (a)(3).) 

Here, Defendant asserts that when Plaintiff’s counsel contacted Defendant’s counsel to meet and confer prior to filing the instant demurrer, Plaintiff’s counsel demanded additional factual detail underlying each of Defendant’s affirmative defenses.  (Canepa Decl. ¶ 6, Ex. A.)  In response, Defendant’s counsel indicated that they had only been recently retained, did not yet know all the facts underlying the various multi-million dollar real estate transactions, and had filed a general denial and thirty-three affirmative defenses to retain Defendant’s rights while they got up to speed on the facts of the case.  (Ibid.)  Defense counsel also granted Plaintiff an extension of time to demur to the answer, and requested additional time to get up to speed on the facts of the case and meaningfully meet and confer before the demurrer was filed.  (Ibid.)  Apparently skeptical of the legal force of a 120-day extension to demur to the answer, Plaintiff filed.  (Ibid.)

Under the circumstances, the Court does not find that further meet and confer efforts would be fruitful.

LEGAL STANDARD - DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a [pleading].”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the [pleading] a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction” means that the reviewing court draws inferences favorable to the drafter, not the demurring party.  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the [pleading] is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a [defense], the rule is that if on consideration of all the facts stated it appears the [pleader] is entitled to any relief at the hands of the court against the [demurring party] the [pleading] will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the [defense] shown, or although the [pleader] may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

ANALYSIS

1.      DEMURRER TO ANSWER

            As a threshold matter, the Court finds defects with the form of the Answer.  First, a verified complaint may not be answered by way of a general denial.  (Code Civ. Proc., § 431.30, subd. (d); City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 476.)

Second, “Where a complaint is verified, […] the answer also must be verified.”  (French v. Smith Booth Usher Co. (1942) 56 Cal.App.2d 23, 29.)  “If an answer is not sufficiently verified in such a case, it may be stricken out[.]”  (Ibid.; see also Hearst v. Hart (1900) 128 Cal. 327, 328.)

            Here, Plaintiff filed a verified First Amended Complaint, but Defendant responded via an unverified Answer, with only a general denial.  Therefore, the Court, on its own motion, strikes the Answer as improper.  (See Code Civ. Proc., § 436, subd (b) [“The court may, […] at any time in its discretion, and upon terms it deems proper […] [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court”].)

            Because the Court strikes the Answer as improper, it does not address the parties’ arguments regarding the level of factual detail underlying the general denial and affirmative defenses.

2.      LEAVE TO AMEND

The pleading party has the burden of showing in what manner the pleading could be amended and how the amendment would change the legal effect of the pleading, i.e., state an affirmative defense. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The pleading party must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a denial or affirmative defense. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a pleading party does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative [pleading] deficient, [the pleading party] respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Defendant has failed to meet this burden, as Defendant merely cites to Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (hereinafter Blank), and requests leave to amend.  (Opposition at p. 3.)  But Blank reiterates “[t]he burden of proving such reasonable possibility [that the defect can be cured by amendment] is squarely on the plaintiff.”  (Blank, supra, 39 Cal.3d at p. 318.)

Nonetheless, because the Court strikes the Answer due to improper form only, the Court grants Defendant leave to file a code-compliant Answer. 

CONCLUSION AND ORDER

For the reasons stated, the Court strikes the Answer for improper form, and overrules as moot Plaintiff’s Demurrer to the Answer. 

Defendant shall have up to and including March 20, 2024 to file and serve a code-compliant Answer to Plaintiff’s verified First Amended Complaint. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  February 29, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court