Judge: Stephen P. Pfahler, Case: 22CHCV00415, Date: 2023-09-01 Tentative Ruling

Case Number: 22CHCV00415    Hearing Date: September 1, 2023    Dept: F49

Dept. F-49

Date: 9-1-23

Case #22CHCV00415

Trial Date: Not Set

DEMURRER

MOVING PARTY: Plaintiff, Dominic Barbar, pro per

RESPONDING PARTY: Defendants, National Field Representatives, Inc., et al.

RELIEF REQUESTED

Demurrer to the Answer to the Second Amended Complaint

SUMMARY OF ACTION

On May 24, 2021, plaintiff Dominic Barbar entered into a one year lease with third party Ehsan Yaghoubi for certain real property located at 25511 Schubert St., unit F, Stevenson Ranch. On March 31, 2022, a trustee sale occurred for the premises, which led to the recording of the Trustees Deed upon Sale on April 4, 2022. Defendant Federal National Mortgage Association (“Fannie Mae”) acquired the property in the sale.

Following the sale, on May 19, 2022, Fannie Mae served a notice of intent to evict Barbar and a notice to vacate the premises. While the lease was set to expire on May 23, 2022, Plaintiff alleges discussing an impending business trip out of the country with an expected return date on May 24, 2022 with Raquel Magro, an agent for defendant Pinnacle Estate Properties, Inc. (Pinnacle). Plaintiff requested additional time for an unspecified purpose.

Plaintiff maintains that said notice to the real estate agent rendered the subsequent “lockout” of the premises (e.g. changed locks), completed without a court or Los Angeles County Sheriff order, constituted an “illegal” act by Fannie Mae and REO Management Solutions, LLC. Plaintiff alleges denial of access to the premises by his son on May 14, 2021, and subsequently missing property. As a result of the lockout and missing property, Plaintiff filed a sheriff’s report on May 22, 2021.

On June 8, 2022, Plaintiff filed a complaint for Conversion, Breach of Covenant of Good Faith and Fair Dealing, Breach of Covenant of Quiet Enjoyment of Premises, Trespass, Nuisance, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligence, and Fraud (twice). On September 19, 2022, Plaintiff filed a first amended complaint. Because the first amended complaint was filed after the opposition due date on the September 27, 20222, scheduled demurrer, the court sustained the demurrer on the complaint, and deemed the first amended complaint filed. (Code Civ. Proc., § 472.)

On September 26, 2022, Plaintiff dismissed Pinnacle Estate Properties and Raquel Magro. On October 12, 2022, Plaintiff filed the second amended complaint for Conversion, Breach of Covenant of Good Faith and Fair Dealing, Breach of Covenant of Quiet Enjoyment of Premises, Trespass, Nuisance, Intentional Infliction of Emotional Distress (6^th and 7^th Causes of Action), Negligence, and Fraud (9^th and 10^th Causes of Action.) The second amended complaint was filed without leave of court.

On March 8, 2023, the court sustained the demurrer of REO Management Solutions, LLC with 20 days leave to amend to all causes of action except for the trespass claim. On March 28, 2023, the court found the demurrer of Federal National Mortgage Association (“Fannie Mae”) moot as to all but the trespass claim, to which the court overruled the demurrer. On April 17, 2023, REO Management Solutions, LLC and Fannie Mae answered the remaining trespass cause of action in the second amended complaint. On May 16, 2023, the court found the demurrer of National Field Representatives, Inc. moot in part, and overruled as to the Trespass causes of action. National Field Representatives, Inc. answered the second amended complaint on May 25, 2023.

RULING: Overruled.

Plaintiff submits demurrer to all but the tenth affirmative defenses of the 10 affirmative defenses pled in the answer of defendants Federal National Mortgage Association (“Fannie Mae”) and REO Management Solutions, LLC (REO), on grounds that the answer lacks supporting facts, and instead only relies on unsupported conclusions. Fannie Mae and REO in opposition challenges the demurrer based on the pleading requirement standards for a defendant, and a representation that all challenged affirmative defenses are properly pled. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

An “answer to a complaint must include ‘[a] statement of any new matter constituting a defense.’ The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ [Citation.] Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a traverse.” (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546 (italics original).)

“Generally, a party must raise an issue as an affirmative defense where the matter is not responsive to essential allegations of the complaint. [Citations omitted.] Thus, where a defendant relies on facts not put in issue by the plaintiff, the defendant must plead such facts as an affirmative defense.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 698; South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733–734 [In considering a demurrer to the answer, the defect in question need not appear on the face of the answer: “the determination of the sufficiency of the answer requires an examination the answer” in context of the operative complaint purportedly being answered].)

A party must allege any and all affirmative defenses or risk waiver. (Cal. Code Civ. Proc., § 430.80(a); See Roy v. Superior Court of County of San Bernardino (2005) 127 Cal.App.4th 337, 345.) An answering party must aver ultimate facts, rather than conclusions. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) The “onus of proof” on any “new matter” alleged in the answer is the burden of the pleading defendant. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.)

The demurrer offers a general challenge to the first nine affirmative defenses based on “boilerplate” allegations. Plaintiff singles out “examples” of the defects on the third and fourth affirmative defenses as part of the insufficiency, without actually offering legally substantiated argument in support.

Legal conclusions in direct legal conflict with the factual allegations of the complaint remain subject to a demurrer, but the court must also refrain from imposing an effective waiver of a defense and imposition of a default, due to the lack of contextual factual support at the time of the filing of the responsive pleading. Barring a legal conflict established by the challenging party, the court adheres to the liberal policy of allowing affirmative defenses with the intent of the parties engaging in discovery for further clarification of any and all claims. The court finds the argument challenging improper reliance on certain phrasing, and lack of insufficient facts, will not support a demurrer for improperly stated affirmative defenses. The court otherwise finds no legal improprieties with the pled defenses.

The demurrer is overruled in its entirety. The parties may engage in discovery regarding support of the defenses.

The case is now at issue. The court will address a trial date at the concurrently set Case Management Conference.

Plaintiff to give notice to all parties.