Judge: Robert B. Broadbelt, Case: 23STCV00648, Date: 2023-08-11 Tentative Ruling

Case Number: 23STCV00648    Hearing Date: August 11, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Marcella Onsurez    

RESPONDING PARTY:        Unopposed

(1)   Demurrer to Answer

(2)   Motion for Judgment on the Pleadings

The court considered the moving papers filed in connection with the demurrer and the motion for judgment on the pleadings.  No opposition papers were filed.

BACKGROUND

Plaintiff Marcella Onsurez (“Plaintiff”) filed this action on January 12, 2023, against defendants Albert Steven Cruz, Nora Tellez, and Teresa Lopez, alleging 12 causes of action for (1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) breach of covenant of quiet enjoyment; (4) trespass; (5) nuisance; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress (8) negligence; (9) wrongful eviction; (10) conversion eviction; (11) uncured building violations; and (12) unfair business practices.

On February 10, 2023, defendant Teresa Lopez (“Lopez”) filed a document entitled “Response,” stating that Lopez is not a party to the subject lease agreement and requesting that the action be dismissed. 

On March 13, 2023, defendants Albert Steven Cruz and Nora Tellez (“Answering Defendants”) filed an answer to Plaintiff’s Complaint.

Now pending are the following two matters filed by Plaintiff: (1) Plaintiff’s demurrer to Answering Defendants’ answer, filed on March 16, 2023, and (2) Plaintiff’s motion for judgment on the pleadings, filed on March 16, 2023.

DEMURRER TO ANSWERING DEFENDANTS’ ANSWER

Plaintiff moves the court for an order sustaining the demurrer to each affirmative defense alleged by Answering Defendants.

The court overrules Plaintiff’s demurrer to the first through fifth, seventh, and ninth through 15th affirmative defenses because, although Plaintiff has identified these defenses in the notice of demurrer, she did not specifically address each of these defenses in her supporting memorandum of points and authorities and therefore did not meet her burden to show that these affirmative defenses are uncertain or do not state facts sufficient to constitute a defense.  (Code Civ. Proc., § 430.20, subds. (a), (b).)

The court sustains Plaintiff’s demurrer to the sixth affirmative defense of laches because it does not state facts sufficient to constitute a defense.  (Code Civ. Proc., § 430.20, subd. (a).)

The court sustains Plaintiff’s demurrer to the eighth affirmative defense of estoppel because it does not state facts sufficient to constitute a defense.  (Code Civ. Proc., § 430.20, subd. (a).)

MOTION FOR JUDGMENT ON THE PLEADINGS

Plaintiff moves the court for an order granting judgment on the pleadings on the ground that Lopez’s February 10, 2023 response to the Complaint does not state facts sufficient to constitute a defense since it is unverified.

The court acknowledges that (1) “[w]hen the complaint is verified, the answer shall be verified[;]” (2) Plaintiff’s Complaint was verified; and (3) Lopez’s February 10, 2023 response was not verified.  (Code Civ. Proc., § 446, subd. (a); Compl., p. 27 [verification page]; Feb. 10, 2023 Response filed by Lopez.)  However, the court denies Plaintiff’s motion for judgment on the pleadings because Plaintiff did not meet her burden to show that her Complaint states facts sufficient to constitute a cause or causes of action against Lopez.  (Code Civ. Proc., § 438, subd. (c)(1)(A)).) 

A plaintiff may file a motion for judgment on the pleadings on the ground “that the complaint states facts sufficient to constitute a cause of action or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.”  (Code Civ. Proc., § 438, subd. (c)(1)(A).)  “Unlike a demurrer, a plaintiff may move for judgment on the pleadings on the ground ‘that the complaint states facts sufficient to constitute a cause of causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.’”  (Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174.)

Here, Plaintiff contends that she is entitled to judgment on the pleadings because Lopez’s response was not verified.  Plaintiff did not present argument or authority establishing that the Complaint states facts sufficient to constitute a cause or causes of action against Lopez.  However, as set forth above, “[j]udgment on the pleadings in favor of a plaintiff is appropriate when the complaint states facts sufficient to constitute a cause of action and the defendants’ answer does not state facts sufficient to constitute a defense.”  (City and County of San Francisco v. All Persons Interested in Matter of Proposition C (2020) 51 Cal.App.5th 703, 712 [italics added].)  Because Plaintiff did not meet her burden to show that the Complaint states facts sufficient to constitute a cause or causes of action against Lopez, she has not met her burden to show that she is entitled to judgment on the pleadings.  (Code Civ. Proc., § 438, subd. (c)(1)(A).)   

The court notes that, on August 1, 2023, Lopez filed a First Amended Answer to Plaintiff’s Complaint.  While Lopez had the right to amend the answer once without leave of court, Lopez was only permitted to do so “before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.”  (Code Civ. Proc., § 472, subd. (a).)  By the time that Lopez filed the First Amended Answer, the time for Plaintiff to file a demurrer to answer had passed. Thus, Lopez was required to obtain leave of court to file the First Amended Answer. 

The court finds that it is in furtherance of justice to grant Lopez leave to amend her answer and therefore, on its own motion, grants Lopez leave to file a First Amended Answer.  The court orders that Lopez’s August 1, 2023 First Amended Answer is deemed filed on that date.

ORDER

The court overrules plaintiff Marcella Onsurez’s demurrer to the first through fifth, seventh, and ninth through 15th affirmative defenses alleged by defendants Albert Steven Cruz and Nora Tellez.

The court sustains plaintiff Marcella Onsurez’s demurrer to the sixth and eighth affirmative defenses alleged by defendants Albert Steven Cruz and Nora Tellez.

The court grants defendants Albert Steven Cruz and Nora Tellez 20 days leave to file a First Amended Answer that cures the defects with the sixth and eighth affirmative defenses set forth in this ruling.

The court denies plaintiff Marcella Onsurez’s motion for judgment on the pleadings.

The court orders that defendant Teresa Lopez’s August 1, 2023 First Amended Answer is deemed filed on that date.

The court orders plaintiff Marcella Onsurez to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 11, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court