Judge: Shirley K. Watkins, Case: 22VECV00768, Date: 2023-02-14 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 22VECV00768    Hearing Date: February 14, 2023    Dept: T

            [TENTATIVE] ORDER:  Plaintiff Edith Liberatore’s Demurrer to the First Amended Answer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the eleventh, fourteenth, and fifteenth affirmative defenses; and OVERRULED as to all other defenses.

Introduction

            Plaintiff Edith Liberatore (Plaintiff) demurred to Defendant The 4455 Fulton Homeowners’ Association, Inc’s (Defendant) First Amended Answer (FAA.)  Plaintiff put into issue all of Defendant’s affirmative defenses (AD) except the twelfth AD alleging a statute of limitations defense.

            Discussion 

            Plaintiff argued that Defendant’s ADs failed to plead sufficient facts and are uncertain.  The argument as to insufficient fact pleading was previously made in the demurrer to the initial Answer.  The Court did not sustain the demurrer to all ADs in the initial Answer on the argument of insufficient fact pleading.  The Court overruled the demurrer as to the first AD for failure to state a cause of action, the third AD for actions consistent with governing documents, the ninth AD for full performance, the tenth AD for excusable non-performance, and the nineteenth AD for no standing to recover attorney fees because Plaintiff’s argument of insufficient fact pleading was unpersuasive.  (The Court notes that it sustained the demurrer to the first, third, ninth, tenth, and nineteenth ADs because the ADs did not refer to the causes of action which they are intended to answer – Code of Civil Procedure sec. 431.30(g).  Defendant cured this pleading defect in the FAA.)  Because the Court already reviewed and ruled upon the issue/argument of insufficient fact pleading as to the first, third, ninth, tenth, and nineteenth ADs, the Court need not again review the issue and stands on the October 3, 2022 overruling of the argument. 

            The demurrer to the first, third, ninth, tenth, and nineteenth ADs is again OVERRULED.

            In the prior ruling, the Court sustained the demurrer to the second AD for business judgment rule, fourth AD for judicial deference doctrine, fifth AD for lack of notice, sixth AD for third party conduct, seventh AD for comparative negligence, eighth AD for consent, thirteenth AD for unclean hands, the sixteenth AD for apportionment, the seventeenth AD for comparative indemnity, eighteenth AD for failure to mitigate, twenty-first AD for Plaintiff’s active negligence (now numbered as the FAA’s twentieth AD,) twenty-second AD for offset (now numbered as the FAA’s twenty-first AD,) twenty-third AD for Proposition 51 (now numbered as the FAA’s twenty-second AD,) twenty-fourth AD for detrimental reliance (now numbered as the FAA’s twenty-third AD,) twenty-fifth AD for impracticability (now numbered as the FAA’s twenty-fourth AD,) twenty-sixth AD for accord and satisfaction (now numbered as the FAA’s twenty-fifth AD,) and twenty-seventh AD for failure to submit matter to ADR (now numbered as the FAA’s twenty-sixth AD) on the grounds of insufficient fact pleading.  Plaintiff again argued that the ADs are insufficiently pled with supportive facts.  Defendant’s FAA alleged new facts to support these ADs by alleging Plaintiff’s misconduct in violating Defendant’s Covenants, Conditions, and Restrictions (CCRs); Defendant’s increase in assessments, and the process in which Defendant with third parties foreclosed on the delinquent assessments and/or liens.  (FAA pars. 1-14.)  The Court finds that these additional facts are sufficient to comply with the pleading requirement of alleging new matter in support of the ADs because the alleged facts are pled to show Plaintiff’s negligent conduct and/or misconduct; Defendant’s process in increasing the assessments; Defendant’s demand of the increased assessments; Plaintiff’s alleged failure/refusal to properly pay the assessments; and prosecuting the foreclosure with third parties.  The Court finds that the new alleged facts sufficiently apprize Plaintiff of the defenses alleged and the facts upon which the defenses are grounded. 

The Demurrer to the second, fourth through eighth, thirteenth, sixteenth through eighteenth, twentieth through twenty-sixth ADs is OVERRULED.

Plaintiff argued that the first AD for failure to state a cause of action, the sixth AD for third party conduct, the seventeenth AD for comparative indemnity, the nineteenth AD for no standing to recover attorney fees, the twentieth AD for Plaintiff’s active negligence, and twenty-second AD for Proposition 51 are not affirmative defenses.  If these ADs are not affirmative defenses, as argued by Plaintiff, then logically the defenses could be considered as general denials.  The Court of Appeal explained that denials, also known as traverses, are matters or facts showing some essential allegation of the complaint not being true.  (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546.)  The Walsh Court quoted, “[a]ll facts which directly tend to disprove any one or more of these [the complaint’s] averments may be offered [at trial] 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. [Internal citation omitted.]” (Id.)  (The Court notes that Plaintiff’s contention that “answers must give notice of facts, not legal theories” is unsupported by the pin citation referenced by Plaintiff.  (See Opposition, pg. 4:19-20.))  Plaintiff’s causes of action (COA,) in summary, alleged claims based upon statutory violations, wrongful foreclosure of liens and breach of Defendant’s governing documents.  The Court agrees with Plaintiff that the first AD for failure to state a cause of action, the seventeenth AD for comparative indemnity, the nineteenth AD for no standing to recover attorney fees, and twenty-second AD for Proposition 51 are not affirmative defenses.  These “defenses” are seen as part of Defendant’s general denial because the assertions dispute the truth of essential allegations of the complaint.  These ADs deny an element of Plaintiff’s COAs (i.e., sufficient fact pleading of the COAs, attorneys’ fees or portions of damages.)  Because the defenses are traverses and seen as part of the general denial, they are not ADs.  However, the Court finds no prejudice to Plaintiff in allowing Defendant to expressly dispute the elements of the COAs. 

The demurrer based upon Plaintiff’s argument that the defenses are not actual ADs is OVERRULED as to the first AD for failure to state a cause of action, the seventeenth AD for comparative indemnity, the nineteenth AD for no standing to recover attorney fees, and twenty-second AD for Proposition 51.

The sixth AD for third party conduct is the defense for apportionment (CACI no. 406,) albeit incorrectly titled by Defendant.  Plaintiff’s COAs allege that Defendant failed to comply with several statutory procedural requirements in enforcing and/or foreclosing on the assessment liens.  (See Compl. first through eighth COAs.)  Defendant identified the third-party servicer that conducted the foreclosure proceedings as California Lien Services (CLS) (FAA par. 8.)  In identifying the third-party servicer, the reasonable inference is that CLS allegedly conducted/foreclosed the lien improperly.  Plaintiff’s argument that the sixth AD not being a proper defense and being insufficiently supported by fact pleading is unpersuasive. 

The demurrer to the sixth AD is OVERRULED.

The twentieth AD for “Plaintiff’s active negligence” is a re-assertion of the Defendant’s seventh AD for comparative negligence (CACI no. 405.)  The twentieth AD is an actual defense, although titled incorrectly.  Plaintiff’s argument that the twentieth AD is not an actual AD is not persuasive.  The Court additionally notes that the new factual allegations found in Answer paragraphs 1-14 are sufficient to plead allegations of fact as to Plaintiff’s negligence/comparative negligence because Defendant pled facts to allege Plaintiff’s destruction of Defendant’s property, Plaintiff’s default or refusal in paying assessments and/or Plaintiff’s improper method of paying assessments.  (FAA pars. 3, 4, 7, 8, 11, and 12.)  The Court finds no prejudice to Plaintiff in allowing Defendant to plead a comparative negligence defense under the seventh and twentieth AD. 

The demurrer to the twentieth AD is OVERRULED as to Plaintiff’s argument that the AD is not an affirmative defense.

Plaintiff argued that Defendant’s eleventh AD for waiver, fourteenth AD for laches, and fifteenth AD for estoppel failed to comply with the heightened pleading standard for equitable defenses.  Defendant’s opposition did not present argument against this contention.  The new alleged facts in the FAA are insufficient to plead facts to support the elements of each of the three ADs.  At minimum, Defendant’s FAA did no not plead any facts to show relinquishment of a known right; did not plead any facts to show delay or prejudice in Plaintiff’s filing of the Complaint; and did not plead any facts to show Plaintiff’s conduct causing Defendant’s detrimental change in position.  Defendant did not plead any facts to support any of the pleading elements for the defenses of waiver, laches or estoppel.

Plaintiff’s demurrer to the eleventh, fourteenth, and fifteenth ADs is SUSTAINED WITH LEAVE TO AMEND due to insufficient fact pleading.

As to the uncertainty argument against all ADs at issue, the ADs are not seen to be uncertain, especially since Plaintiff did not assert/identify how, why, and where (by reference to page and line numbers) the uncertainties appear.  Without application of law to pleading allegations, the uncertainty argument is conclusory.  Further, the Court finds the ADs to be straightforward and clear so as to apprise Plaintiff as to the defenses being asserted.  Plaintiff’s uncertainty argument as to all ADs at issue is unpersuasive and OVERRULED.