TENTATIVE RULING

Calendar:    8

Date:          7/19/2024 

Case No: 24 NNCV00708 Trial Date: None Set 

Case Name: Raner v. Stumpus, et al.

DEMURRER TO ANSWER

Moving Party:            Plaintiff Cheryl L. Raner       

Responding Party: Defendant John K. Stumpus       

RELIEF REQUESTED:

SUMMARY OF FACTS:

The verified complaint alleges that defendant has failed to properly manage the property, failing to collect rents at fair market value for several units and neglecting to accurately record the property’s income and expenses, and not providing information on accounting related to the property to plaintiff.  

Plaintiff alleges that the parties do not communicate well and have been unable to reach an agreement to divide the property, leaving plaintiff with no option other than to undertake this action for the parties’ common benefit. 

The complaint alleges one cause of action for partition, and seeks allowance, accounting, contribution or any compensatory adjustments among the parties according to equity, an interlocutory judgment, appointment of a partition referee and receiver, an order of disbursement, a writ of possession, and attorneys’ fees and experts’ and referees’ expenses. 

Defendant Stumpus, individually and as successor trustee of the Achilles Stumpus and Geraldine Miller Stumpus Family Trust, has filed a verified answer to the complaint, responding to each paragraph of the complaint, and alleging thirteen affirmative defenses. 

ANALYSIS:

Under CCP section 430.30, an objection may be taken by demurrer to a pleading, “[w]hen any ground for objection to” an “answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…”

CCP section 430.20 provides:

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(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.”

Plaintiff Raner initially argues that in a partition action, the law requires that the defendant specifically allege the status of defendant’s  interest in the property, but defendant has failed to do so.  

Plaintiff relies on CCP section 872.410, which provides, in pertinent part, with respect for civil actions for partition of real and personal property: 

“The answer shall set forth:

(a) Any interest the defendant has or claims in the property.” 

Plaintiff argues that defendant is required to set up in his own pleading the nature and extent of his interest in the property, and that an allegation that plaintiff and defendant are owners of the property fails to state the proportionate interest being claimed by defendant. 

Defendant in opposition argues that the answer sufficiently alleges defendant’s position that plaintiff no longer holds any interest in the property, as in paragraph 4 of the answer, defendant alleges that “title is vested in the trustee to the Achilles Stumpus and Geraldine Miller Stumpus Family Trust U/D/T Dated Septemver 10, 2007 (see Exhibit E to the Verified Partition Complaint)”  [Answer, para. 4].  

Defendant argues that a review of that document, Exhibit E to the Complaint, which supersedes any allegations of the complaint to which it is attached to the extent the allegations are inconsistent, shows that title is in fact held in that matter.  The document is a Guarantee of Condition of Title issued by First American Title on March 8, 2024, and states:

“According to the Public Records as of the Date of Guarantee, 

a.  Title to the estate or interest in the Land is vested in: 

Achilles Stumpus and Geraldine Miller Stumpus, as Trustees of The Achilles Stumpus and Geraldine Miller Stumpus Family Trust, U/D/T Dated September 10, 2007, Subject to Exception No. 5.”

[Complaint, Ex. E]. 

Plaintiff also argues that since the legislature removed all defenses to a partition complaint other than waiver, the fourth through fifteenth affirmative defense are invalid as a matter of law. 

Plaintiff relies on CCP section 872.710 (b), which provides:

“Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.”    

Plaintiff relies on LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, in which the court of appeal observed,  “A co-owner of property has an absolute right to partition unless barred by a valid waiver.”   LEG Investments, at 493.  

However, as noted above, defendant here is taking the position that plaintiff is not a co-owner of the property, so that the right to partition is in issue here. 

In addition, Miller and Starr recognize that:

“Partition is a matter of absolute right and in the absence of waiver or estoppel or other equitable defenses, each co-tenant in ownership has the right to petition for partition of the common property.”

Miller and Starr, California Real Estate (4th Ed.)  § 40:126, emphasis added. 

There is also a discussion in Miller & Starr with respect to defenses to partition, in which it is observed:

“Equitable defenses. The element of unfairness that precludes an absolute right of partition under various circumstances often results from the fact that a court ordered sale of the property in a partition action is a sale of the entire interest in the property and not merely a sale of the individual interests of the co-owners. The sale becomes a “forced sale” in the same sense as a foreclosure sale or a sale under execution. The objecting co-owner is thereby required to part with his or her interest in the property contrary to his or her expectations. Because an action for partition is an equitable proceeding, this hardship on the defendant cotenant has induced the courts to modify the absolute right of partition by certain equitable defenses such as waiver of the right of partition, estoppel, or other conditions that make the equitable principle of fairness applicable.

 

Unfairness as a defense to partition. “[I]n addition to the limitation on the right of partition derived from the express or implied waiver by agreement, the courts have imposed an even wider and more general limitation. This limitation subjects the right of partition to the ‘requirements of fairness.’”

Miller and Starr, California Real Estate (4th Ed.)  § 11:20, footnotes omitted, italics in the original, quoting American Medical International, Inc. v. Feller (1976) 59 Cal. App. 3d 1008, 1015. 

The demurrer on this ground is overruled. 

Plaintiff argues that the first cause of action for failure to state a cause of action affirmative defense is inadequate as a matter of a law, as it is merely a general denial, which is prohibited in response to a verified complaint. 

It appears that under California statutory law, this is a valid objection to a pleading.  As defendant points out in the opposition, under CCP Section 430.80, the defense is expressly designated a valid objection which cannot be waived even if a party fails to timely assert it:

“(b) If the party against whom an answer has been filed fails to demur thereto, that party is deemed to have waived the objection unless it is an objection that the answer does not state facts sufficient to constitute a defense.”

Since this defense cannot be waived even if not asserted, it evidently can be asserted in an answer, and need not be alleged with any particularity.  In Stevens v. Torregano (1961) 192 Cal.App.2d 105, the court of appeal expressly observed:

“[T]he point that a complaint does not state a cause of action is never waived.  The point may be raised by answer, and it is not improper to do so, even though a previous demurer on the same ground has been overruled.”

Stevens, at 112, citations omitted. 

The demurrer on this ground is overruled. 

Plaintiff argues that the first affirmative defense and the fourth through twelfth affirmative defenses, which are equitable defenses, are not sufficiently specifically pled.  

Plaintiff relies on FPI Development, Inc. v. Nakashima (1993) 231 Cal.App.3d 367, in which the court of appeal affirmed the granting of a motion for summary judgment, in part on the ground that the conclusory affirmative defenses stated in defendants’ answer were insufficient to place facts in issue. 

“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." (See Pomeroy, Code Remedies, supra, at 563, at p. 917.) 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. (See e.g.,   Metropolis etc. Sav. Bank v. Monnier (1915) 169 Cal. 592, 596 [147 P. 265] (Metropolis);  Riegel v. Wollenshlager (1920) 49 Cal.App. 300, 301 302 [193 P. 160].)”

FPI, at 384.

These defenses, particularly when considered in connection with the allegations and exhibits to the complaint, are sufficient to provide plaintiff notice of what is being alleged.  In addition, this court does not find this specificity argument under FPI Development  persuasive, because the case stands for the generic proposition that mere allegations in a pleading are insufficient to withstand summary judgment.  It does not stand for the proposition of a heightened pleading standard for affirmative defenses in an answer.  The case does not make any reference to CCP sections 430.20 or 430.30.  

RULING:

Plaintiff’s Demurrer to Defendant’s Answer is OVERRULED. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect offers free audio and video appearances.  However, ADVANCE REGISTRATION IS REQUIRED. 

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.