Judge: Michael E. Whitaker, Case: 24SMCV02770, Date: 2024-10-28 Tentative Ruling
Case Number: 24SMCV02770 Hearing Date: October 28, 2024 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
October
28, 2024 |
|
CASE NUMBER |
24SMCV02770 |
|
MOTION |
Demurrer
to Answer |
|
Plaintiff Galina Kopelev |
|
|
OPPOSING PARTY |
Defendant
The Churchill Condominium Association |
MOTION
On June 10, 2024, Plaintiff Galina Kopelev (“Plaintiff”) filed suit
against Defendant The Churchill Condominium Association (“Defendant”) alleging
ten causes of action for (1) breach of the governing documents; (2) breach of
the covenant of good faith and fair dealing; (3) breach of fiduciary duties;
(4) breach of the covenant of quiet enjoyment; (5) negligence; (6) public
nuisance; (7) private nuisance; (8) trespass; (9) intentional infliction of
emotional distress; and (10) negligent infliction of emotional distress.
Defendant answered the Complaint, alleging fifty-five affirmative
defenses. Plaintiff now demurs to all
fifty-five affirmative defenses and the prayer for relief. Defendant opposes the demurrer and Plaintiff
replies.
LEGAL
STANDARD
As the Court of Appeal has
explained, as “[t]o the allegations of new matter, [n]umerous defenses were
purportedly raised by defendants’ allegations of affirmative defense. Most of these allegations fail to state a defense
even when liberally construed in defendants’ favor. Some are simply
immaterial. For example, defendants
allege as a conclusion that plaintiff's claim is barred by laches, an equitable
defense that has no application to the plaintiff's legal claim. All of the allegations are proffered in the
form of terse legal conclusions, rather than as facts averred as carefully and
with as much detail as the facts which constitute the cause of action and are
alleged in the complaint. The only affirmative defenses that are mentioned in
the summary judgment proceedings, fraud in the inducement and failure of
consideration, are not well pled, consisting of legal conclusions, and would
not have survived a demurrer.” (FPI
Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [cleaned up];
see also Quantification Settlement Agreement Cases (2011) 201
Cal.App.4th 758, 813 [“affirmative defenses cannot be pled as mere legal
conclusions but must instead be alleged with as much factual detail as the
allegations of a complaint”]; Department of Finance v. City of Merced
(2019) 33 Cal.App.5th 286, 294, fn. 6 [boilerplate affirmative defenses without
factual support are deficient].)
REQUEST
FOR JUDICIAL NOTICE
Defendant requests judicial notice
of the following:
Judicial notice may be taken
of records of any court in this state.
(Evid. Code, § 452, subd. (d)(1).)
Because these exhibits are all part of the Court’s record for this case,
the Court may take judicial notice of them.
(Ibid.) However, “while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial notice of
allegations in affidavits, declarations and probation reports in court records
because such matters are reasonably subject to dispute and therefore require
formal proof.” (Lockley v. Law Office
of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
882 [cleaned up].)
Accordingly, the Court takes
judicial notice of thee exhibits, but not the truth of the allegations
contained therein.
TIMELINESS
OF DEMURRER/MEET AND CONFER
“A party who has filed a complaint
or cross-complaint may, within 10 days after service of the answer to his
pleading, demur to the answer.” (Code
Civ. Proc., § 430.40, subd. (b).)
Further, 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).)
On August 5, 2024, Defendant filed and electronically served its
Answer to the Complaint. Thus, by
operation of Code of Civil Procedure sections 430.40, subdivision (b) and
1010.6, subdivision (a)(2)(B), Plaintiff’s deadline to demur to the Answer was
August 19.
On August 19, Plaintiff filed a Declaration of Demurring Party in
support of Automatic Extension, which indicates:
“I made a good faith attempt to meet and
confer with the party who filed the pleading at least five days
before the date the responsive pleading was due (if I am filing a
demurrer or motion to strike) and at least five days before the last day a
motion for judgment on the pleadings may be filed (if I am filing a motion for
judgment on the pleadings). I was unable to meet with that party because […] I
attempted to meet and confer with the Defendant's counsel on August 16, 2024,
but to date have not yet received a response. I was unable to meet and confer
with Defendant's counsel sooner because our client, the Plaintiff, was
unavailable to speak about the sufficiency of Defendant's answer, which delayed
our ability to finalize a strategy for the meet and confer process.”
(Emphases
added.)
Indeed, late in the evening of August 16, Counsel for Plaintiff
emailed counsel for Defendant, requesting an extension to permit the parties an
opportunity to meet and confer, as necessary, regarding Plaintiff’s
contemplated demurrer to the answer, and generally describing Plaintiff’s
claimed deficiencies with the Answer.
(Ex. A to Peng Decl.) The Court
notes that August 16 is only three days prior to the original August 19
deadline to demur to the answer.
However, the statute only requires:
The parties shall meet and confer at least 5 days
before the date the responsive pleading is due. If the parties are not able to
meet and confer at least 5 days before the date the responsive pleading is due,
the demurring party shall be granted an automatic 30-day extension of time
within which to file a responsive pleading, by filing and serving, on or before
the date on which a demurrer would be due, a declaration stating under penalty
of perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.
(Code
Civ. Proc., § 430.31, subd. (a)(2).)
Thus, although the standard language of the Declaration indicates
Plaintiff made a good faith attempt to meet and confer at least five days prior
to the deadline to demur, Plaintiff’s counsel clarifies that counsel did not
make an initial attempt to meet and confer until August 16, and elaborates that
Plaintiff’s counsel was unable to do so sooner due to the client’s
unavailability. Further, the Court notes
that ten days is a very tight turnaround time to meet and confer regarding fifty-five
separate affirmative defenses.
Because the statute merely requires that Plaintiff explain why the
parties were unable to meet and confer, which Plaintiff did here, the Court
finds the declaration of the demurring party in support of an extension proper. Therefore, Plaintiff’s deadline to demur was
extended by thirty days to September 18.
However, the Peng declaration does not indicate that any subsequent
efforts to meet and confer were made. (See
generally Peng Decl.) Indeed, the
Arevalo declaration indicates, “Plaintiff never made any further attempt to
meet and confer ‘in person, by telephone, or by video conference,’ or in
writing, about the perceived deficiencies of Defendant’s Answer to the
Complaint.” (Arevalo Decl. ¶ 8.)
Thus, Plaintiff has not established that Plaintiff properly met and
conferred with Defendant prior to filing the instant demurrer. Notwithstanding, failure to properly meet and
confer does not constitute sufficient grounds for the Court to overrule the
demurrer. (Code Civ. Proc., § 430.41,
subd. (a)(4) [“A determination by the court that the meet and confer process
was insufficient shall not be grounds to overrule or sustain a demurrer.”]
Yet, Plaintiff’s demurrer was also untimely. Although it was due September 18, by virtue
of the automatic extension, Plaintiff did not file and serve the demurrer until
October 1.
Plaintiff requests that the Court nonetheless exercise its discretion
to consider the untimely demurrer, or in the alternative to construe it as a
motion for judgment on the pleadings.
Ultimately, because the demurrer is untimely and the
parties failed to meaningfully meet and confer, the Court declines Plaintiff’s
invitation to overlook these deficiencies, construe the demurrer as a motion
for judgment on the pleadings, and analyze the merits at this time.
CONCLUSION AND ORDER
The Court overrules Plaintiff’s demurrer to the Answer in its entirety
as untimely. Further, because Plaintiff
failed to properly meet and confer with Defendant prior to filing it, the Court
declines Plaintiff’s request to construe the untimely demurrer as a motion for
judgment on the pleadings, but does so without prejudice to Plaintiff’s filing
of any subsequent motion for judgment on the pleadings, as necessary and
appropriate.
In the meantime, the Court strongly encourages the
parties to meet and confer in good faith, in light of the legal standard the
Court has outlined above, to try to come to an agreement and potentially
stipulate to an amended answer, as appropriate, to avoid expending Court
resources to analyze fifty-five separate affirmative defenses, unless
absolutely necessary.
Plaintiff is ordered to provide notice of the Court’s ruling and file a
proof of service of such.
DATED: October 28, 2024 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court