Judge: Michael E. Whitaker, Case: 24SMCV04965, Date: 2025-01-21 Tentative Ruling

Case Number: 24SMCV04965    Hearing Date: January 21, 2025    Dept: 207

TENTATIVE RULING

MOTION

On October 11, 2024, Plaintiff Artur Shahinyan (“Plaintiff”) filed suit against Defendant Mercedes-Benz USA LLC (“Defendant”) for restitution and damages under the Song-Beverly Consumer Warranty Act.  On November 21, 2024, Defendant answered the Complaint by way of a general denial and asserted forty-four affirmative defenses.

Plaintiff now demurs to the following affirmative defenses for failure to state facts sufficient to constitute a defense because they are barred by collateral estoppel:

• Second Affirmative Defense for Breach of Condition Precedent

• Twelfth Affirmative Defense for Failure to Comply with Statutory Requirements

• Thirteenth Affirmative Defense for Failure to Allow a Cure

• Fourteenth Affirmative Defense for Release and Settlement

• Seventeenth Affirmative Defense for Substantial Impairment

• Nineteenth Affirmative Defense for Failure to Give Proper Notice

• Twenty-Seventh Affirmative Defense for Purchase Outside of California

• Thirty-Seventh Affirmative Defense for Defendant’s Good Faith

• Thirty-Eighth Affirmative Defense for Failure to Comply with Civil Code section 1794, subd. (e)(3)

• Thirty-Ninth Affirmative Defense for Unnecessary Attorneys’ Fees, Costs, and Expenses

• Fortieth Affirmative Defense for Excuse from Performance

• Forty-First Affirmative Defense for Excuse from Performance

• Forty-Second Affirmative Defense for No Entitlement to Pre-Judgment Interest

• Forty-Third Affirmative Defense for Prompt Repurchase Offer Precludes Civil Penalty

• Forty-Fourth Affirmative Defense for Arbitration and Award

Plaintiff also moves to strike these affirmative defenses for containing irrelevant, false and/or improper matter.

Defendant opposes both motions and Plaintiff replies.

ANALYSIS

“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 the allegations, 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 complaint 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”].)

A plaintiff may demur to an answer if: “(a) The answer does not state facts sufficient to constitute a defense.  [¶]  (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.  [¶]  (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.”  (Code Civ. Proc., § 430.20.)  “Code of Civil Procedure section 431.30, subdivision (b) provides that an answer to the complaint shall contain, in addition to a “general or specific denial” of the complaint's allegations, a statement of any new matter constituting a defense. It has long been held that if the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter.”  (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239 [cleaned up].) 

The Appellate Court 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].) 

1.     Timeliness of Demurrer

            “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, the Code of Civil Procedure 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., § 430.41, subd. (a)(2).)

Here, the Answer was filed and electronically served on November 21, 2024.  Ten days after service is Sunday, December 1, which extends to Monday, December 2, by operation of Code of Civil Procedure section 12a.  Further, because service was made electronically, the time to file a demurrer or to challenge the Answer is extended by two court days to Wednesday, December 4.  (Code Civ. Proc., § 1010.6, subd. (3)(B).) 

On November 27, 2024, Plaintiff’s counsel. Christopher R. Hunt, filed a declaration of demurring party in support of an automatic extension, which provides:

Upon receiving Defendant Mercedes-Benz USA LLC's Answer, I reviewed the document and assessed grounds for a demurrer hereto. I thereafter contacted Defendant's counsel to articulate Plaintiff's grounds for a demurrer and to inquire as to counsel's availability to meet and confer. Unfortunately, because Plaintiff's demurrer is due on December 2, 2024, there is insufficient time to meet and confer five days before the date when the responsive pleading is due.

The Court acknowledges that ten days is a very tight turnaround time to analyze forty-four affirmative defenses in anticipation of a demurrer and Plaintiff satisfied the requirements of Section 430.41 to obtain an automatic extension.

Thirty days following December 4 makes the deadline to file a demurrer or challenge the Answer is Friday, January 3, 2025.  Plaintiff filed the instant demurrer and motion to strike on December 16, 2024.  Thus, the motions are timely.

2.     Meet & Confer

            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.”  (See also Code Civ. Proc., § 435.5 [analogous meet and confer requirement for motions to strike].)

Moreover, “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/motion to strike] and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1) [demurrer]; § 435.5, subd. (a)(1) [motion to strike].)  “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/moving] party shall file and serve with the [demurrer/motion to strike] 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) [demurrer]; § 435.55, subd. (a)(3) [motion to strike].) 

Here, Plaintiff has advanced the Declaration of Christopher R. Hunt, which provides:

8. Before resorting to Court intervention, Plaintiff made a good faith effort to resolve the issues informally with MBUSA. On November 27, 2024, Plaintiff wrote to MBUSA and requested an extension to potentially file a Demurrer. On the same date, Plaintiff filed and served his Declaration of Demurring or Moving Party in Support of Automatic Extension. On December 11, 2024, Plaintiff wrote to MBUSA to meet and confer regarding the Demurrer and to discuss his concerns with the affirmative defenses in MBUSA’s Answer. See December 11, 2024 meet and confer correspondence, a true and correct copy of which is incorporated by reference and attached hereto as Exhibit E. Plaintiff proposed that the parties meet and confer regarding these issues via telephone or video conference pursuant to Code of Civil Procedure section 430.41. Plaintiff also asked Defendant to propose some potential dates/times for a conference. Plaintiff requested that MBUSA withdraw the insufficient defenses and file an amended answer. MBUSA, however, failed to respond.

(Hunt Decl. ¶ 8.)  Similarly, the Declaration of Kainoa Aliviado, counsel for Defendant, provides:

13. On November 27, 2024 at 4:05 p.m., a full week before Plaintiff’s deadline to bring a demurrer to the Answer, Plaintiff’s Counsel sent a single email stating the following:

Counsel:

Due to the upcoming holiday, I write to request a two-week extension on Plaintiff’s deadline to file a demur to Defendant’s Answer. That would make the new deadline Dec 16. Please advise if Defendant is agreeable to the proposed extension.

Thanks,

Christopher R. Hunt, Esq.

14. Attached hereto as Exhibit A is a true and correct copy of Plaintiff’s Counsel’s November 27, 2024 email.

15. Also on November 27, 2024, at 4:11p.m., Plaintiff filed and served a declaration pursuant to CCP section 430.41(a)(2) on Defense Counsel, for an automatic 30-day extension to bring a demurrer to the Answer.

16. Attached hereto as Exhibit B is a true and correct copy of the service email electronically serving Plaintiff’s Declaration for Extension of Time Pursuant to CCP section 430.41(a)(2), as well as a true and correct copy of the Declaration.

17. Prior to the November 27, 2024 email, Plaintiff’s Counsel never mentioned an intent to file a demurrer to the Answer or motion to strike. 18. Plaintiff’s Counsel sent a single letter on December 11, 2024, and then filed this demurrer and motion to strike 5 days later on December 16, 2024.

(Aliviado Decl. ¶¶ 13-17.)

Thus, the parties appear in agreement that they did not properly meet and confer in good faith either telephonically or in person prior to the filing of the demurrer and motion to strike.  However, “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”  (Code Civ. Proc., § 430.41, subd. (a)(4).) 

CONCLUSION AND ORDER

Therefore, the Court continues the hearing on the demurrer and motion to strike to March 5, 2025 at 8:30 A.M. in Department 207, the same date and time as the hearing on Defendant’s pending motion to compel arbitration, to allow the parties to meaningfully meet and confer and potentially stipulate to an amended answer or otherwise resolve some or all of the issues raised prior to resorting to Court intervention.

Further, on the Court’s own motion, the Court continues the Case Management Conference from February 11, 2025 to March 5, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

Plaintiff shall provide notice of the Court’s orders and file the notice with a proof of service forthwith.

DATED:  January 21, 2025                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court