Judge: Robert B. Broadbelt, Case: 22STCV04562, Date: 2023-03-02 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.



Case Number: 22STCV04562    Hearing Date: March 2, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

 

 

austin hammesfahr ;

 

Plaintiff,

 

 

vs.

 

 

tiffany summer kjenstad , et al.;

 

Defendants.

Case No.:

22STCV04562

 

 

Hearing Date:

March 2, 2023

 

 

Time:

10:00 a.m.

 

 

 

[Tentative] Order RE:

 

plaintiff’s demurrer and motion to strike answer to complaint

 

MOVING PARTY:                 Plaintiff Austin Hammesfahr

 

RESPONDING PARTY:        Unopposed

Demurrer and Motion to Strike Answer to Complaint

The court considered the moving papers filed in connection with this demurrer and motion to strike.  No opposition papers were filed.

BACKGROUND

Plaintiff Austin Hammesfahr (“Plaintiff”) filed this action against defendants Tiffany Summer Kjenstad and Luke Miller-Kjenstad on February 7, 2022, alleging seven causes of action for (1) fraudulent misrepresentation; (2) negligent misrepresentation; (3) conversion; (4) fraudulent concealment; (5) breach of oral agreement; (6) breach of implied covenant of good faith and fair dealing; and (7) intentional infliction of emotional distress.

Defendant Tiffany Summer Kjenstad (“Defendant”) filed her answer to Plaintiff’s Complaint on April 20, 2022.[1]

Plaintiff now moves the court for an order (1) sustaining his demurrer to each defense alleged in Defendant’s answer, and (2) striking Defendant’s answer.

DEMURRER

The court overrules Plaintiff’s demurrer to Defendant’s answer on the ground of uncertainty because the answer is not ambiguous or unintelligible.  (Code Civ. Proc., § 430.20, subd. (b).)

The court sustains Plaintiff’s demurrer to Defendant’s first affirmative defense without leave to amend because it does not state facts sufficient to constitute a defense since “failure to state a claim” does not plead new matter and is therefore not an affirmative defense.  (Code Civ. Proc., § 430.20, subd. (a).)

The court sustains Plaintiff’s demurrer to Defendant’s second, third, fourth, fifth, sixth, eighth, ninth, 11th, 12th, 13th, and 14th affirmative defenses because they do not state facts sufficient to constitute a defense.  (Code Civ. Proc., § 430.20, subd. (a).)

The court overrules Plaintiff’s demurrer to Defendant’s seventh and 10th affirmative defenses because they state facts sufficient to constitute a defense.  (Code Civ. Proc., § 430.20, subd. (a).)

MOTION TO STRIKE

The court denies Plaintiff’s motion to strike Defendant’s answer because the defenses pleaded are not irrelevant, false, or improper.  (Code Civ. Proc., § 436, subd. (a).)

ORDER

The court sustains plaintiff Austin Hammesfahr’s demurrer to defendant Tiffany Summer Kjenstad’s first affirmative defense without leave to amend.

The court sustains plaintiff Austin Hammesfahr’s demurrer to defendant Tiffany Summer Kjenstad’s second, third, fourth, fifth, sixth, eighth, ninth, 11th, 12th, 13th, and 14th affirmative defenses with leave to amend.

The court overrules plaintiff Austin Hammesfahr’s demurrer to defendant Tiffany Summer Kjenstad’s seventh and 10th affirmative defenses.

The court orders that defendant Tiffany Summer Kjenstad has leave to file a First Amended Answer that amends the second, third, fourth, fifth, sixth, eighth, ninth, 11th, 12th, 13th, and 14th defenses within 20 days of service of this order. 

The court orders plaintiff Austin Hammesfahr to give notice of this ruling.

 

IT IS SO ORDERED.

 

DATED:  March 2, 2023

 

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court



[1] The court notes that default was entered against Defendant on April 18, 2022.  However, the court ordered that the default entered against Defendant was set aside pursuant to the oral stipulation of the parties at the July 11, 2022 Case Management Conference.  (July 11, 2022 Minute Order, p. 1.)  The court further ordered that Defendant’s answer, filed on April 20, 2022, shall be the operative answer to the Complaint.  (Ibid.)