Judge: Teresa A. Beaudet, Case: 18STCV06807, Date: 2023-01-30 Tentative Ruling

Case Number: 18STCV06807    Hearing Date: January 30, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Brian Weiner, individually and derivatively on behalf of Onyx Tower Management, LLC (“Plaintiff”) filed this action on November 30, 2018 against a number of defendants. The operative Third Amended Complaint (“TAC”) was filed on October 22, 2020, asserting causes of action for breach of contract, breach of the covenant of good faith and fair dealing, constructive trust, accounting, declaratory relief, constructive fraud, fraud, and appointment of receiver.

On March 6, 2020, defendant Michael Hakim filed a Cross-Complaint against a number of cross-defendants. On January 19, 2021, a number of defendants filed a Cross-Complaint against Plaintiff.  

On January 19, 2021, Defendants Onyx Tower Group, LLC, Sam Hakim, Julia Hakim, Tanya Hakim, Onyx Tower, LLC, Said Hakim, and Onyx Tower Holdings, LLC (collectively, “Defendants”) filed an answer to the TAC.

Plaintiff now moves for judgment on the pleadings as to Defendants’ answer to the TAC. Defendants oppose.

Discussion

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by ¿Code of Civil Procedure section 438¿, the rules governing demurrers apply.¿

 If the moving party is a plaintiff, a motion for judgment on the pleadings may be made on the grounds that “the complaint states facts sufficient to constitute a cause 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).) The motion may be made as to “[t]he entire answer or one or more of the affirmative defenses set forth in the answer.” (Code Civ. Proc., § 438, subd. (c)(2)(B).) A motion for judgment on the pleadings “¿tests the pleadings alone and not the¿evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿”¿(¿SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [regarding demurrers]¿.)

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc., § 430.20.) Every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (Code Civ. Proc., § 431.30, subd. (g).)

“Demurring to an answer is a commonly recognized practice. Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff’s stated cause of action. A general demurrer raises the objection that the answer does not state facts sufficient to constitute a defense . . . .” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 [internal citations and quotations omitted; emphasis in original].) As a general rule, defendants must allege facts in support of affirmative defenses. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint’” are not well pled and cannot survive a demurrer].)

Plaintiff contends that the general denial and every affirmative defense alleged in Defendants’ answer to the TAC is defective.

As to the general denial, Code of Civil Procedure section 431.30, subdivision (b) provides that “[t]he answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” In their answer, Defendants allege, inter alia, that “[u]nder the provisions of California Code of Civil Procedure § 431.30, these answering Defendants deny each, every, and all of the allegations as to all causes of action of Plaintiff’s Third Amended Complaint contained therein. The answering Defendants deny that Plaintiff has sustained damages in the sum or sums alleged, or in any other sum or sums whatsoever, or at all, by reason of any act, breach, or omission by the answering Defendants.” (Answer, p. 1:26-2:1.)

Plaintiff asserts that the general denial is improper because it “only denies the allegations contained within the ‘causes of action’ of Plaintiffs’ TAC, and such denial is limited to Brian Weiner’s allegations, and not his derivative claims.” (Mot. at p. 5:7-10.) Plaintiff similarly contends that “[t]he affirmative defenses are also limited to the allegations brought by Brian Weiner, and not Plaintiffs collectively, rendering the entire answer deficient.” (Mot. at p. 5:11-12.) But Plaintiff fails to cite to any legal authority supporting this assertion, and the answer does not allege that the general denial or affirmative defenses are limited to Brian Weiner as an individual. The answer refers to “Plaintiff.”

Next, Plaintiff asserts that the first affirmative defense is uncertain as to which cause of action is referenced. But the first affirmative defense alleges that “[a]s a first and separate affirmative defense to each and every cause of action in Plaintiff’s Third Amended Complaint, these answering Defendants allege that such causes of action fail to state a cause of action against the answering Defendants.” (Answer, ¶ 1, emphasis added.) Plaintiff also asserts that the first affirmative defense is devoid of facts. The Court notes that Defendants’ fourteenth affirmative defense similarly alleges that “Plaintiff has failed to state sufficient facts that would entitle Plaintiff to an award of damages, costs, attorney’s fees, or any other type of relief.” (FAC, ¶ 14.) The Court finds that the first and fourteenth affirmative defenses are sufficiently pled as no additional facts are required to demonstrate whether the complaint states facts sufficient to constitute a cause of action. (Baker v. Sudo (1987) 194 Cal.App.3d 936, 942, fn. 7, “[h]ere, the Sudos and the Andersons pled failure ‘to state facts sufficient to constitute a cause of action’ as an affirmative defense in their answer to Baker’s complaint. This was sufficient…”) The Court thus denies Plaintiff’s motion as to the first and fourteenth affirmative defenses.  

Defendants’ third affirmative defense is on statute of limitations grounds. Plaintiff asserts that this affirmative defense is deficient because it is unclear how or why the statute of limitations acts as a bar to any cause of action. The Court notes that Code of Civil Procedure section 458 provides that “[i]n pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section _______ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” Defendants’ third affirmative defense does not set forth any statutory provision(s) that allegedly bar Plaintiff’s causes of action. Thus, the Court grants Plaintiff’s motion as to the third affirmative defense, with leave to amend.

In the second affirmative defense (off set), Defendants allege that “these answering Defendants allege that to the extent Plaintiff is entitled to any funds from these answering Defendants, Plaintiff’s recovery must be reduced or eliminated and subject to set off for failure to pay Plaintiff’s proportional share of property taxes, property insurance, maintenance, and repairs on the subject real property.” (Answer, ¶ 2.) The Court finds that the second affirmative defense fails to allege sufficient facts to constitute a defense. As Plaintiff notes, no facts are set forth to support the allegation that Plaintiff has an obligation to pay a “proportional share of property taxes, property insurance, maintenance, and repairs on the subject real property.” Similarly, the Court finds that the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty-second, thirty-third, and thirty-fourth affirmative defenses are in the form of terse legal conclusions and thus fail to state facts sufficient to constitute a defense. Thus, the Court grants the motion as to the foregoing affirmative defenses, with leave to amend.

The Court notes that Defendants assert in the opposition that the Court should deny the instant motion because they “engaged in a meet and confer…in order to resolve Plaintiff’s alleged concerns regarding Defendants answer to Plaintiff’s Third Amended Complaint.” (Opp’n at p. 4:4-17.) Defendants indicate that their counsel drafted a “Stipulation and Proposed Order Regarding the Defendants Filing Amended Answers to Plaintiff’s Third Amended Complaint.” (Wilson Decl., ¶ 5.) But as Defendants indicate, Plaintiff did not stipulate to Defendants filing amended answer(s). (Wilson Decl., ¶ 5.) Defendants also assert that their discovery responses set forth detailed facts sufficient to support Defendants’ affirmative defenses and general denial. This assertion acknowledges that such facts are not included in Defendants’ answer to the TAC.

Conclusion

Based on the foregoing, Plaintiff’s motion for judgment on the pleadings is denied as to the first and fourteenth affirmative defenses and the general denial set forth in Defendants’ answer.

Plaintiff’s motion for judgment on the pleadings is granted as to the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty-second, thirty-third, and thirty-fourth affirmative defenses, with leave to amend.

The Court orders Defendants to file and serve an amended answer, if any, within 20 days of the date of service of this order.

Plaintiff is ordered to give notice of this order.

DATED:  January 30, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court