Judge: Teresa A. Beaudet, Case: 19STCV38469, Date: 2022-09-07 Tentative Ruling

Case Number: 19STCV38469    Hearing Date: September 7, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 28, 2019, Plaintiffs Willie F. McMullen, Jr., Deanna Welch, and Daijon Carcamo (collectively, “Plaintiffs”) filed this action against Defendants Ana Ward (“Ward”), HDSI Management, Inc. (“HDSI”), Walton Halad Company Two, LLC (“Walton”), and Kimball, Tirey & St. John LLP.   

The operative Second Amended Complaint (“SAC”) was filed on August 9, 2021, and asserts causes of action for (1) breach of contract, (2) defamation per se, (3) discrimination, (4) breach of the implied covenant of quiet enjoyment, (5) negligent supervision of employee, (6) inducing breach of contract, and (7) intentional infliction of emotional distress.

On May 9, 2022, the Court issued an order on Ward, HDSI, and Walton’s special motion to strike portions of the SAC. The May 9, 2022 Order provides, inter alia, that “the Court grants Defendants’ special motion to strike with respect to the breach of the implied covenant of quiet enjoyment, negligent supervision of employee, inducing breach of contract, and IIED causes of action, as well as the breach of contract cause of action as it relates to the submission of HUD-50059 forms to HUD. Defendants must file and serve their answer on or before 5/24/22” 

On May 24, 2022, Ward, HDSI, and Walton (collectively, “Defendants”) filed an answer to the SAC. 

Plaintiffs now demur to the answer and move to strike portions of the answer.[1] Defendants oppose.

Request for Judicial Notice

The Court grants Plaintiffs’ request for judicial notice in support of the demurrer and motion to strike as to Exhibits A, B, C, D, and E. The Court denies the request as to Exhibits F, G, H, and I. The Court notes that it takes judicial notice only of the fact of the existence of Exhibits A, B, C, D, and E.

The Court denies Plaintiffs’ supplemental request for judicial notice. The Court notes that “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) 

Discussion

A.    Demurrer

“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., section 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).)

Plaintiffs contend that every affirmative defense alleged in Defendants’ answer to the SAC is defective.

First, as to uncertainty, the Court finds that the second, third, fourth, fifth, sixth, ninth, tenth, eleventh, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, and twenty-fifth affirmative defenses fail to refer to the causes of action which they are intended to answer, and thus are not capable of being intelligibly distinguished. Thus, the Court sustains the demurrer to the above-listed affirmative defenses, with leave to amend.

            As to the remaining affirmative defenses, in the first affirmative defense, Defendants allege in part that “the SAC, and each and every purported cause of action, fails to allege facts sufficient to state a cause of action against these answering Defendants.” (Answer to SAC, ¶ 1.) The Court finds that this affirmative defense is 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 overrules the demurrer to the first affirmative defense.   

The Court finds that the seventh affirmative defense (waiver) fails to allege sufficient facts to constitute a defense. No facts are set forth to support the allegation that Plaintiffs have waived and released each and all of their rights and causes of action against Defendants. Similarly, the Court finds that eighth and twelfth affirmative defenses are in the form of terse legal conclusions and thus fail to state facts sufficient to constitute a defense. Thus, the Court sustains the demurrer to the foregoing affirmative defenses, with leave to amend.

Defendant’s thirteenth affirmative defense is on statute of limitations grounds. The Court notes that Code of Civil Procedure section 458 provides that pleading a statute of limitations defense may be done “generally” by identifying the statute upon which the defense is based. Here, Defendants have identified specific statutory provisions for their statute of limitations defense.[2] Plaintiffs assert that Code of Civil Procedure Sections 338.2, 338(4), and 339.1 (certain statutes alleged by Defendants) either do not exist, or Plaintiffs were not able to find them. The Court also was unable to locate these provisions, and Defendants do not respond to this point in the opposition. However, Plaintiffs’ demurrer is to the entirety of the thirteenth affirmative defense, and Plaintiffs do not cite to any legal authority indicating that the Court may sustain a demurrer to a portion of an affirmative defense. Rather, as discussed below, in connection with a motion to strike, a court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)¿ The Court thus overrules the demurrer to the thirteenth affirmative defense. 

B.    Motion to Strike

Plaintiffs move to strike portions of Defendants’ answer to the SAC. A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)¿ 

First, Plaintiffs move to strike “[t]he 25 affirmative defenses and paragraphs 1-25 under the affirmative defenses based upon the arguments presented in Plaintiffs demurrer to Defendants answer filed concurrently with this motion.” (Mot. at p. 2:14-16.) As discussed above, Defendants’ affirmative defenses are addressed by Plaintiffs’ demurrer. The Court ruled on Plaintiffs’ demurrer to each of the affirmative defenses. Thus, the Court finds that Plaintiffs’ motion to strike the affirmative defenses (based on the arguments set forth in the demurrer) is moot.

Second, Plaintiffs move to strike “[p]aragraphs 7, 10, 12-17, 19, 21-23, 26-30, 32-36, 41-50, 52-56, 58-62, 65-66, 68-69, 72-75, 78-83, 85-93, 95-105, 107-109, 111-113, 117, 119, 124, 132-133, 135, 137-138, 144, 148-148 in its entirety, deeming the entire paragraph admitted.” (Mot at p. 2:6-8.) Plaintiffs argue that “[t]he denials for lack of information or belief by WALTON, HDSI and WARD in their answer that is discussed in this motion should be deemed a sham, false, evasive and should be stricken. This is because the matters are within defendants’ actual knowledge or presumed to be within their knowledge by the nature of the subject.” (Mot. at p. 6:25-28.) In support of this assertion, Plaintiffs rely on facts set forth in documents attached to Plaintiffs’ request for judicial notice. The Court agrees with Defendants that the majority of the motion to strike concerns factual matters which are not appropriate at the pleading stage.

The Court notes that “[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Fremont Indemnity Co . v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) Plaintiffs cite to Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734, where the Court of Appeal noted that “[i]t is generally not proper for the court to refer to extrinsic material or facts in ruling on a general demurrer, for the obvious reason that only the law is presented for the court’s consideration. This rule occasionally, however, has been relaxed in order to allow the court to take judicial notice of evidentiary matters in its own records, including affidavits, declarations, and interrogatories or requests for admissions, which are inconsistent with the allegations in the complaint.” However, the Court notes that other case law provides, “[f]or a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer. In short, a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” (Fremont Indemnity Co . v. Fremont General Corp., supra,148 Cal.App.4th 97, 114-115 [internal citation omitted].) The Court finds that here, Plaintiffs are attempting to convert the motion to strike into an incomplete evidentiary hearing. 

Lastly, Plaintiffs move to strike the text on page 19:17-21[3] of the SAC, which alleges that, “[t]he declarations and exhibits attached to the SAC are not incorporated by reference as allegations of the SAC, and therefore no response from Defendants is required. Alternatively, to the extent the declarations and exhibits attached to the SAC contain factual allegations against these Defendants, Defendants lack information or belief sufficient to permit them to admit or deny the allegations and, on that basis, deny each and every such allegation.” Plaintiffs argue that this paragraph “should be stricken as false, evasive, a sham and improper. Defendants are attempting to ignore the declarations and exhibits attached to the complaint and deny their admissions because the words ‘incorporate by reference’ are not found on the face of the SAC. The defendants do not cite any authority that supports their argument that the words ‘incorporate by reference’ must be pleaded.” (Mot. at p. 29:5-9.) Defendants do not offer any response to this argument in the opposition. Thus, the Court grants the motion to strike as to the allegations, “[t]he declarations and exhibits attached to the SAC are not incorporated by reference as allegations of the SAC, and therefore no response from Defendants is required,” with leave to amend.

Conclusion

For the reasons set forth above, Plaintiffs’ demurrer to the first and thirteenth affirmative defenses is overruled, and Plaintiffs’ demurrer to the remaining affirmative defenses (second through twelfth and fourteenth through twenty-fifth) is sustained with leave to amend.

Plaintiffs’ motion to strike is granted as to the allegations that, “[t]he declarations and exhibits attached to the SAC are not incorporated by reference as allegations of the SAC, and therefore no response from Defendants is required” (Answer at p. 19:17-18), with leave to amend. Plaintiffs’ motion to strike is otherwise denied. 

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

Plaintiffs are ordered to give notice of this order.

DATED:  September 7, 2022                         ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court