Judge: Nick A. Dourbetas, Case: 2021-01232198, Date: 2022-11-18 Tentative Ruling
Demurrer to Answer
Plaintiff Erste Abwicklungsanstalt’s demurrer to the 1st through 7th affirmative defenses in the first amended answer of defendant Steven Rebeil is OVERRULED in part and SUSTAINED in part as follows:
Overruled as to the 1st, 4th, 5th, 6th and 7th affirmative defenses.
Sustained as to the 2nd and 3rd affirmative defenses.
1st Cause of Action:
This affirmative defense of failure to state sufficient facts does not require that facts be pleaded in support thereof. (See Code Civ. Proc., §§ 430.801, 4582.)
Demurrer is overruled as to this affirmative defense.
2nd Cause of Action:
Judicial estoppel requires facts showing (1) the same party has taken two positions; (2) the two positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position; (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. Drain v. Betz Laboratories, Inc., (1998) 69 Cal.App.4th 950, 956.
The above allegations do not assert Moving Party was successful in asserting its position in the prior proceeding. In fact, the allegations state Moving Party was unsuccessful on numerous occasions. “Judicial estoppel does not apply when a party merely advocates inconsistent provisions; rather, it applies when a party successfully asserts one position and later attempts to benefit from asserting an inconsistent position.” RSL Funding, LLC v. Alford, 239 Cal.App.4th 741, 748, 190 Cal.Rptr.3d 917, 922 (4th Dist.2015).
Demurrer is sustained as to this affirmative defense.
3rd Cause of Action:
The statute of limitations defense is technically deficient. Although when statutes of limitations are raised as affirmative defenses in an answer, Code of Civil Procedure § 458 provides that “it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by … the number of the section and the subdivision thereof …” Here, defendant has not alleged the statute(s) of limitations that are applicable to the claims asserted in the complaint.
The demurrer as to this affirmative defense is sustained.
4th Cause of Action:
The doctrine of unclean hands is an equitable one. The misconduct which brings the doctrine of unclean hands into operation must relate directly to the transaction concerning which the complaint is made, that is, it must pertain to the very subject matter involved and affect the equitable relations between the litigants. Meridian Financial Services, Inc. v. Phan, (2021) 67 Cal. App. 5th 657. Here, the affirmative defense states facts indicating that Moving Party is attempting to “forum shop” and is seeking relief in direct contrast to the decision of another court. Whether that defense will be successful is a question yet to be answered. But defendant has sufficiently stated the defense.
The demurrer as to this affirmative defense is overruled.
5th Cause of Action:
Moving Party improperly attacks this affirmative defense on the merits. Such an attack is not proper on demurrer. A demurrer lies only where the defects appear on the face of the pleading.... The only issue involved in a demurrer hearing is whether the complaint [or answer], as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; accord, Satyadi v. West Contra Costa Healthcare District (2014) 232 Cal.App.4th 1022, 1028.)
The demurrer as to this affirmative defense is overruled.
6th Cause of Action:
For the same reasons discussed in connection with the 5th affirmative defense, the demurrer is overruled.
7th Cause of Action:
For the same reasons discussed in connection with the 5th affirmative defense, the demurrer is overruled.
Plaintiff’s request for judicial notice is granted.
Defendant is granted fifteen days leave to amend.
Plaintiff shall give notice.