Judge: Ronald F. Frank, Case: 24TRCV02566, Date: 2024-10-29 Tentative Ruling

Case Number: 24TRCV02566    Hearing Date: October 29, 2024    Dept: 8

            Tentative Ruling¿ 

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HEARING DATE:                    October 29, 2024¿ 

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CASE NUMBER:                      24TRCV02566

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CASE NAME:                           Esmeralda Gallemore v. Michael J. Kniery, et al.

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MOVING PARTY:                   Plaintiff, Esmeralda Gallemore

RESPONDING PARTY:        Defendant, Michael J. Kniery (No Opposition)

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TRIAL DATE:                           Not Set.

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MOTION:¿                                  (1) Plaintiff’s Demurrer to Kniery’s Answer

                                                (2) Plaintiff’s Motion to Strike Michael Kniery’s Answer

                                                (3) Plaintiff’s Request for Entry of Default against Michael Kniery

                                                (4) Plaintiff’s Motion for Sanctions

Tentative Rulings:                     (1) Plaintiff’s Demurrer is SUSTAINED with 20 days leave to amend.

                                                (2) Plaintiff’s Motion to Strike Michael Kniery’s Answer is DENIED.

                                                (3) Plaintiff’s Request for Entry of Default against Michael Kniery is DENIED.

                                                (4) Plaintiff’s Motion for Sanctions is DENIED.

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On August 1, 2024, Plaintiff, Esmeralda Gallemore (“Plaintiff”) filed a complaint against Defendants, Michael J. Kniery, Kathryn Margaret Kniery, Dillon Treadway, and DOES 1 through 15. The complaint alleges causes of action for: (1) Breach of Contract; (2) Fraud in Contract Formation – Civil Code section 1572; (3) Intentional Misrepresentation – Civil Code section 1710; (4) Breach of Covenant of Good Faith and Fair Dealing; and (5) Negligence.

On September 9, 2024, Defendant, Michael J. Kniery filed his answer to the complaint in pro per.

Now, Plaintiff has filed a demurrer with motion to strike and request for entry of default and sanctions against Defendant, Michael J. Kniery.

B. Procedural¿¿ 

            On October 1, 2024, Plaintiff filed a Demurrer with motion to strike and request for entry of default and sanctions against Defendant, Michael J. Kniery. To date, no opposition has been filed.

II. ANALYSIS

A.    Legal Standard

A plaintiff may demur to a defendant’s answer within 10 days of being served with the answer (Code Civ. Proc., § 430.40, subd. (b)) on three grounds: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; or (3) failure to state whether a contract alleged in the answer is written or oral. (Id. at § 430.20). The demurrer may be to the whole answer or to any one or more of the several defenses set up in the answer. (Code Civ. Proc., §430.50, subd. (b).) The plaintiff may not demur to part of a defense. Each defense must be considered separately without regard to any other defense, and one defense does not become insufficient because it is inconsistent with other parts of the answer. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) 

“[W]hether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (Id. at 732.) “[T]he demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.” (Id. at 733.) But unlike a demurrer to a complaint, “the defect in question need not appear on the fact of the answer” as “[t]he determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (Ibid.) 

B.    Discussion

Plaintiff argues that she is demurring to Defendant, Michael J. Kniery’s answer on the following grounds: (1) that he failed to serve his answer on the Plaintiff; (2) that he failed to file a proof of service of his answer; (3) that he failed to date his answer; and (4) that he failed to state which causes of action that his affirmative defenses numbers 3, and 5-17 refer to.

i.                Meet and Confer

Code of Civil Procedure section 430.41, subdivision (a) states that, before filing a demurrer, the moving party must engage in a specified meet and confer process with the party who filed the pleading at issue for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer/motion to strike.  “[T]he demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  If an amended complaint…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before a demurrer to the amended pleading.” (emphasis added.) (Code Civ. Proc. § 430.41(a).) A declaration setting forth such meet and confer efforts must accompany the demurrer. (Code Civ. Proc. § 430.41(a)(3).)   

Plaintiff’s counsel, Matthew Huzaineh filed a declaration (“Huzaineh Decl.”) indicating that prior to the service and filing of the demurrer, he attempted to meet and confer with Defendant, Michael J. Kniery by sending him an email, but that Kniery failed to respond. (Huzaineh Decl., ¶ 6.) Based on this, and the fact that no opposition has been filed arguing otherwise, this Court finds that Plaintiff attempted to meet and confer in good faith prior to the filing of this demurrer.

ii.              Timeliness

As noted above, pursuant to Code of Civil Procedure section 430.40, subdivision (b), “[a] party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.” (Code Civ. Proc., § 430.40, subd. (b).) Here, Defendant, Michael J. Kniery’s answer was filed on September 9, 2024. However, Plaintiff’s moving papers indicate that Defendant, Michael J. Kniery never served the answer on her. Thus, it appears that Plaintiff is arguing that the 10 day clock never started running. Plaintiff’s counsel notes that once he realized service would not be served on Plaintiff, he quickly filed this motion.

iii.             Demurrer

Also noted above, a Plaintiff can demur to an answer on three grounds: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; or (3) failure to state whether a contract alleged in the answer is written or oral. (Code Civ. Proc., § 430.20). According to Plaintiff’s demurrer, she is moving based on uncertainty, arguing that Defendant failed to date his answer, and failed to separately refer to which causes of action that affirmative defenses 3 and 5-17 relate to. The court does not find that failure to date an answer, or state which affirmative defenses relate to which of Plaintiff’s causes of action is so uncertain as to sustain demurrer on uncertainty grounds alone. In fact, Plaintiff cites no authority for which it makes its argument. With respect to Kniery’s failure to serve the Answer on Plaintiff, that is a different concern which may affect later pleadings and other documents the self-represented Kniery may generate in this case, so the Court will take this as a learning opportunity to educate Kniery of the importance of the requirement that any document filed with the Court shall, must, and will in the future be emailed or mail served on every other party who has appeared in the action.  To accomplish that result, the Court will sustain the demurrer with 20 days leave to amend, giving Kniery the opportunity to correct the substantive shortcomings of failing to separately refer to which causes of action Kniery’s claimed affirmative defenses 3 and 5-17 are raised as defenses to.

iv.             Motion to Strike

Although Plaintiff’s moving papers indicate that she seeks to strike Defendant, Michael J. Kniery’s Answer as to his third, and fifth through seventeenth affirmative defenses, this court notes that Plaintiff makes no legal or analytic argument for her motion to strike. The only argument made is based on demurrer. As such, the motion to strike is DENIED.

v.               Request for Entry of Default

As with the motion to strike, this court notes that Plaintiff’s moving papers do not have an argument made as to entry of default. Plaintiff has filed a request to take Kniery’s default, which has not been entered and which will be rejected because Kniery did timely file an Answer.  As such, this motion is DENIED.

vi.             Request for Sanctions

Again, the Court notes that no argument is made as to why Plaintiff is entitled to monetary sanctions. The Court elects to treat this as  a teaching moment for an out of state, self-represented defendant rather than a sanctionable moment.  The request for sanctions is thus denied.

III. CONCLUSION¿¿ 

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Plaintiff is ordered to give notice of the above rulings.