Judge: Peter A. Hernandez, Case: 22PSCV00024, Date: 2022-08-10 Tentative Ruling

Case Number: 22PSCV00024    Hearing Date: August 10, 2022    Dept: O

Plaintiff Pinnacle Aegis, LLC’s Demurrer to Portions of Defendant Jack Ren’s Answer is OVERRULED in part (i.e., as to the Sixth Affirmative Defense) and otherwise SUSTAINED. The court will hear from Jack Ren as to whether leave to amend is requested, and as to which affirmative defense(s), and will require an offer of proof if so.

Background   

Plaintiff Pinnacle Aegis, LLC (“Plaintiff”) alleges as follows: Starting on or about June 2018, Plaintiff’s assignor Wayne Gan began contracting with UCK Electric & Cooling, Inc. (“UCK”) for a series of jobs. There were five contracted jobs total. Jack Ren (“Jack”) was the primary contractor who performed the work on all of the contacts at issue. Jack was not licensed. Defendants failed to complete the work and/or performed substandard work.

On January 12, 2022, Plaintiff filed a complaint, asserting causes of action against UCK, Kent Kin Chan (“Chan”), Jack, Diana Ren (“D. Ren”) and Does 1-50 for:

1.                  Breach of Contract

2.                  Conversion

3.                  Fraud (Misrepresentation)

4.                  Recovery of Payments to Unlicensed Contractor (California Business & Professions Code § 7031(b))

5.                  Unfair Competition (California Business & Professions Code § 17200)

6.                  Breach of Express Warranties

7.                  Breach of Implied Warranties

8.                  Declaratory Relied

On May 2, 2022, UCK’s and D. Ren’s defaults were entered.

A Case Management Conference is set for August 10, 2022.

Legal Standard

“The answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subd. (b).)

A demurrer to an answer may be made upon any one or more of the following grounds: (1) The answer does not state facts sufficient to constitute a defense; (2) The answer is “uncertain,” i.e., ambiguous or unintelligible; and/or (3) 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.)

Discussion

Plaintiff demurs to the first, fourth through eighth, eleventh and twenty-fourth affirmative defenses in Jack’s answer.

First, Fourth, Fifth, Seventh, Eighth and Twenty-Fourth Affirmative Defenses (i.e., Lack of Standing, Unclean Hands, Laches, Waiver and Estoppel, Intervening and Superceding Causes and Unforeseen Act of Nature, Respectively)

“Under Code of Civil Procedure section 431.30, subdivision (b)(2), the answer to a complaint must include ‘[a] statement of any new matter constituting a defense.’ The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’” but only a traverse.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383, fn. 4 [“All facts which directly tend to disprove any one or more of these averments may be offered under the general denial: all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defense independently of them, cannot be offered under the denial; they are new matter, and must be specially pleaded” (quotation marks and citation omitted)].)

The aforesaid affirmative defenses raise new matter but fail to state facts sufficient to constitute defenses; accordingly, Plaintiff’s demurrer to same is sustained.

Sixth Affirmative Defense (i.e., Statutes of Limitation)

Code of Civil Procedure § 458 provides that “[i]n pleading the Statute of Limitations 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 provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.”

Jack’s sixth affirmative defense complies with the above Code section; accordingly, Plaintiff’s demurrer to same is overruled.