Judge Theresa M. Traber, Case 21STCV41132 2022-08-24 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV41132, Date: 2022-08-24 Tentative Ruling

Case Number: 21STCV41132 Hearing Date: August 24, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 24, 2022 TRIAL DATE: NONE SET

CASE: Dermot Damian Givens v. Formosa Gardens HOA et al..

CASE NO.: 21STCV41132

DEMURRER TO ANSWER TO FIRST AMENDED COMPLAINT

MOVING PARTY: Plaintiff Dermot Damian Givens.

RESPONDING PARTY(S): Defendants Formosa Gardens HOA, Alexsei Durack, Kevin Ngoc Khuat

CASE HISTORY:

11/08/21: Complaint filed.
05/03/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for fraud and enforcement of governing documents for a homeowner’s association under the Davis-Stirling Act. Plaintiff sued Formosa Gardens HOA (“Defendant HOA”) and Alexsei Durack and Kevin Ngoc Khuat (“Individual Defendants”) alleging breach of governing documents, multiple violations of the Davis-Stirling Act (Civ. Code § 5200 et seq.), fraud, theft in violation of Penal Code section 496, conversion, intentional interference with contractual relations, and declaratory relief.

Plaintiff demurs to each of the seventeen affirmative defenses pled in the answer as failing to state facts sufficient to constitute a defense and uncertain.

TENTATIVE RULING:

Plaintiff’s Demurrer to the Answer is OVERRULED with respect to the second, sixth, seventh, eighth, ninth, and sixteenth affirmative defenses and otherwise SUSTAINED with 30 days’ leave to amend.

DISCUSSION:

Plaintiff demurs to each of the seventeen affirmative defenses pled in the answer as failing to state facts sufficient to constitute a defense and uncertain.

Legal Standard

Code of Civil Procedure section 430.20 provides:

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.

(Code Civ. Proc. § 430.20.)

Regarding the standards for pleading an affirmative defense:

(1) In General. An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue. (Bruck v. Tucker (1871) 42 C. 346, 352; Greiss v. State Inv. & Ins. Co. (1893) 98 C. 241, 244, 33 P. 195; Bradbury v. Higginson (1914) 167 C. 553, 557, 140 P. 254 [if matter set up is equitable cause of action, answer must contain all averments essential to statement of cause of action as such]; see 19B Am.Jur. P.P. Forms (2007 ed.), Pleading, §85 et seq.)

(2) Argumentative Denials. The affirmative form in which the defendant phrases his or her answering averments does not make them new matter. If they merely contradict essential allegations of the complaint, they are simply denials in affirmative form (“argumentative denials”). (Frisch v. Caler (1862) 21 C. 71, 74; Goddard v. Fulton (1863) 21 C. 430, 436; Rancho Santa Margarita v. Vail (1938) 11 C.2d 501, 543, 81 P.2d 533; Jolley v. Clemens (1938) 28 C.A.2d 55, 65, 82 P.2d 51, supra, §1077.)

(6 Witkin Cal. Proc. Plead § 1122.)

Affirmative defenses that are mere legal conclusions are insufficient:

The . . . answer alleged merely: “Plaintiff’s claims are barred in whole or in part by the doctrine of waiver,” and “Plaintiff's causes of action, or some of them, are barred by the doctrine of laches because plaintiff unreasonably delayed bringing suit, causing defendants to reasonably rely on the status quo.”

These affirmative defenses consist of legal conclusions that could survive neither a demurrer nor a motion for judgment on the pleadings. (Citations omitted.)

(Westly v. Board of Administration (2003) 105 Cal. App. 4th 1095, 1117.) Rather than being “proffered in the form of terse legal conclusions,” affirmative defenses must plead facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

Further, a demurrer for uncertainty is strictly construed, even where a pleading is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the pleading is so unclear that defendant cannot reasonably respond--i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) "The objection of uncertainty does not go to the failure to allege sufficient facts." (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Han W. Sir, Plaintiff’s counsel, states that the parties exchanged emails and conferred telephonically multiple times on June 20 and 21, 2022 before this demurrer was filed. (Declaration of Han W. Sir ISO Demurrer ¶¶ 2-7.) Plaintiff’s counsel has attached copies of the parties’ electronic correspondence. (See Sir Decl. Exhs. 1-4.) In opposition, Defendants contend that Plaintiff failed to meet and confer in good faith because Plaintiff’s counsel “was hyper focused on the Court’s previous finding that one phone call was not sufficient to satisfy the meet and confer requirement” and “did not properly identify with legal support the basis of the deficiencies in Defendants’ Answer.” (Opposition p.2:6-7, 9-10.) Defendants’ contention is not well taken. Plaintiff’s counsel expressly stated the deficiencies raised in the Demurrer in the June 20, 2022 email reaching out to Defendants. (Sir Decl. Exh. 1.) In addition, Defendants’ counsel expressly acknowledged in the return correspondence following the initial telephone call that Plaintiff’s counsel had stated the basis for his contentions. (Id. Exh. 3.) Defendants’ disagreement with the validity of Plaintiff’s contentions is not evidence of a failure to meet and confer in good faith. The Court therefore finds that Plaintiff has complied with the meet and confer requirements of Code of Civil Procedure section 430.41(a).

Scope of Demurrer

As a threshold matter, Defendants argue in opposition that if a single defense or counterclaim is free from the objections raised by the demurrer, the demurrer must be overruled. Defendants rely on South Shore Land Company v. Petersen (1964) 266 Cal.App.2d 725, 733 in support of this contention. As Plaintiff states in reply, Defendants’ reliance on this citation is misplaced: the answer in South Shore Land Company was a general denial with supporting facts, and the plaintiff demurred to the general denial in its entirety. (Id. at 734-39.) Here, Defendants filed an answer raising seventeen affirmative defenses, to which Plaintiff has demurred individually. Defendants cite no law standing for the proposition that the Court must overrule the demurrer in its entirety if a single affirmative defense survives.

Reference to Causes of Action

Defendants contend that each affirmative defense is uncertain because each of the seventeen affirmative defenses fails to identify which defenses apply to which of Plaintiff’s several causes of action. Code of Civil Procedure section 431.30(g) requires that each affirmative defense “refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” With the exception of the second affirmative defense which states that it applies to “each and every cause of action,” none of the other sixteen affirmative defenses reference any specific cause of action. Instead, each defense refers vaguely to the “action,” “Plaintiff’s claims,” or Plaintiff’s “recovery.”

Defendants do not address this argument in opposition. However, construing the answer in the light most favorable to the non-moving party, as required on demurrer, the Court finds that the remainder of the affirmative defenses refer to the First Amended Complaint in its entirety. The first affirmative defense references “Plaintiff’s claims,” which the Court construes as referring to all of Plaintiff’s causes of action, as in the second affirmative defense. (Answer ¶¶ 1, 3.) The fifth affirmative defense similarly refers to the “action.” (Id. ¶ 6.) The third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, fifteenth, and seventeenth affirmative defenses refer to Plaintiff’s recovery, which the Court construes as referring to Plaintiff’s recovery under all causes of action. (Id. ¶¶ 4-5, 7-16, 18.) The twelfth affirmative defense similarly refers to Defendants’ liability for damages, which, under the standard for a demurrer, the Court construes as referencing Defendant’s liability for damages under any cause of action. (Id. ¶ 13.) Finally, the sixteenth affirmative defense specifically attacks Plaintiff’s prayer for injunctive relief. (Id. ¶ 17.) As drafted, the Court finds that each affirmative defense provides sufficient information to show that they are intended to refer to all claims against Defendants. The Court therefore finds the affirmative defenses are not uncertain.

Mislabeled Affirmative Defenses

Plaintiff contends that the second through fourth, sixth through ninth, eleventh, twelfth, sixteenth and seventeenth affirmative defenses fail to state facts sufficient to constitute a defense because they do not allege new matter, and instead refute Plaintiff’s prima facie case. However, Plaintiff cites no law standing for the proposition that a demurrer for failure to state facts sufficient to constitute a defense must be sustained merely because a defense is mislabeled as an affirmative defense when it is instead a denial. The Court therefore finds that the identified causes of action do not fail to state facts sufficient to constitute defenses on this basis. However, as Plaintiff contends that each of these causes of action also fails to allege the requisite facts sufficient to support their contentions, notwithstanding the mislabeling, the Court will review the sufficiency of the allegations for each affirmative defense.

Sufficiency of Allegations

Plaintiff demurs to each of the seventeen affirmative defenses for failure to state facts sufficient to constitute a defense.

1. First Affirmative Defense (Business Judgment Rule)

The first affirmative defense alleges that Plaintiff’s claims fail because Defendants are protected by the Business Judgment Rule. (Answer ¶ 1.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. This defense is merely a conclusory legal assertion without supporting facts. Defendants have failed to state facts sufficient to constitute a defense.

2. Second Affirmative Defense (Failure to State Facts Sufficient to Support a Cause of Action)

This defense, mislabeled as an affirmative defense, alleges that Plaintiff’s causes of action fail because Plaintiff has failed to state facts sufficient to constitute a cause of action for each of the twelve causes of action in the First Amended Complaint. (Answer ¶ 3.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. As to this defense, the Court agrees that additional allegations are not required. This defense is a legal contention challenging the sufficiency of Plaintiff’s allegations and therefore does not require Defendants to allege additional facts in support.

3. Third Affirmative Defense and Fifteenth Affirmative Defense (Plaintiff’s Misconduct)

These defenses allege that Plaintiff’s recovery as to any injury must be diminished to the extent that such injury was proximately caused by Plaintiff’s misconduct or negligence. (Answer ¶¶ 4, 16.) The fifteenth affirmative defense alleges that Plaintiff’s injuries were proximately caused by Plaintiff “failing to conduct himself in a manner expected of a reasonably prudent person.” (Id. ¶ 16.) Plaintiff demurs to these defenses for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. These defenses are merely conclusory legal assertions without supporting facts showing that Plaintiff engaged in any misconduct. Defendants have failed to state facts sufficient to constitute a defense.

4. Fourth Affirmative Defense and Eleventh Affirmative Defense (Failure to Mitigate)

These defenses allege that Plaintiff’s recovery as to any injury must be diminished because Plaintiff failed to mitigate the damages sustained. (Answer ¶¶ 5, 12.) Plaintiff demurs to these defenses for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. These defenses are merely conclusory legal assertions without supporting facts. Defendants have failed to state facts sufficient to constitute a defense.

5. Fifth Affirmative Defense (Laches)

This defense alleges that Plaintiff’s recovery is barred by the doctrine of laches. (Answer ¶ 6.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. This defense is merely a conclusory legal assertion without supporting facts. Defendants have failed to state facts sufficient to constitute a defense.

6. Sixth Affirmative Defense (Attorney’s Fees)

This defense, mislabeled as an affirmative defense, alleges that Plaintiff has failed to state and cannot prove any entitlement to recovery of attorney’s fees and expenses. (Answer ¶ 7.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. As to this defense, the Court agrees that additional allegations are not required. This defense is an argumentative denial of the allegations in the First Amended Complaint, and therefore does not require Defendants to allege additional facts in support.

7. Seventh Affirmative Defense (Pre-Judgment Interest)

This defense, mislabeled as an affirmative defense, alleges that Plaintiff has failed to state and cannot prove any entitlement to recovery of pre-judgment interest. (Answer ¶ 8.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. As to this defense, the Court agrees that additional allegations are not required. This defense is an argumentative denial of the allegations in the First Amended Complaint, and therefore does not require Defendants to allege additional facts in support.

8. Eighth and Ninth Affirmative Defenses (Good Faith, Failure to State Facts Sufficient for Claim of Punitive Damages)

These defenses, mislabeled as affirmative defenses, allege that Plaintiff cannot recover on the basis of Plaintiff’s bad faith, malice, or evil motive because Defendants deny the existence of any bad faith, malice, or evil motive, and that Plaintiff cannot prove facts sufficient to support a claim for punitive damages. (Answer ¶¶ 9-10.) Plaintiff demurs to these defenses for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. As to these defenses, the Court agrees that additional allegations are not required. These defenses are argumentative denials of the allegations in the First Amended Complaint, and therefore do not require Defendants to allege additional facts in support.

9. Tenth Affirmative Defense (Plaintiff’s Breach)

This defense alleges that Plaintiff’s recovery is barred because Plaintiff failed to perform certain conditions of the contract at issue. (Answer ¶ 11.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. This defense is merely a conclusory legal assertion without supporting facts. Defendants have failed to state facts sufficient to constitute a defense.

10. Twelfth Affirmative Defense (Proportional Limitation of Damages)

This defense alleges that Defendants’ liability should be reduced in proportion to the percentage of Defendants’ negligence or fault, if any. (Answer ¶ 13.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. This defense is merely a conclusory legal assertion without supporting facts. Defendants have failed to state facts sufficient to constitute a defense.

11. Thirteenth Affirmative Defense (Third-Party Misconduct)

This affirmative defense alleges that Defendants’ liability and Plaintiff’s recovery should be diminished to the extent that any injury was proximately caused by the misconduct of any third parties. (Answer ¶ 14.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. This defense is merely a conclusory legal assertion without supporting facts. Defendants have failed to state facts sufficient to constitute a defense.

12. Fourteenth Affirmative Defense (Statute of Limitations)

This affirmative defense alleges that Plaintiff’s action “is or may be barred by the statute of limitations provisions enunciated in Code of Civil Procedure, sections 335.1, 337, 338(b), and 338(c). (Answer ¶ 15.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In pleading a 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.” (Code Civ. Proc. § 458.) In other words, there are two ways to plead the statute of limitations. (Brown v. World Church (1969) 272 Cal.App.2d 684, 691.) “[F]irst by alleging all of the facts showing that the action is barred . . . and indicating that the lateness of the commencement of the action is being urged as a defense.” (Ibid.) Second, “to specify the applicable section, and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof.” (Ibid. [holding that the defendants had failed to properly plead the statute of limitations because “Section 337 of the Code of Civil Procedure has two subdivisions and defendants failed to specify under which subdivision of the section they allegedly come”])

Here, Defendants have not alleged the specific statutory section, along with any necessary subsections, that applies to each of Plaintiff’s causes of action. Defendants have alleged multiple statutory sections and have not indicated which of Plaintiff’s claims each of these statutes of limitations applies to. Furthermore, Defendant has not alleged facts which show that the action is barred by any statute of limitations. This does not qualify as sufficient pleading of a statute of limitations defense, absent allegations as to the facts supporting each of the listed statutes of limitations.

13. Sixteenth Affirmative Defense (Request for Injunction)

This defense, mislabeled as an affirmative defense, alleges that Plaintiff’s request for an injunction is barred by Code of Civil Procedure section 526 or any other applicable law. (Answer ¶ 17.) Plaintiff demurs to this defense for failure to state facts sufficient to constitute a defense.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. As to this defense, the Court agrees that additional allegations are not required. This defense is an argumentative denial of the allegations in the First Amended Complaint, paired with a legal argument that Plaintiff is not entitled to injunctive relief, and therefore does not require Defendants to allege additional facts in support.

14. Seventeenth Affirmative Defense (Offset)

This defense alleges that Defendant is entitled to an offset for money damages incurred by the actions, omissions, or conduct of Plaintiff or other parties.

In opposition, Defendants state generally that each affirmative defense is supported by Defendants’ denial of any injuries and damages suffered by Plaintiff and any prayers made thereupon. The Court disagrees. This defense is merely a conclusory legal assertion without supporting facts. Defendants have failed to state fact sufficient to constitute a defense.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) California law imposes the burden on the party who filed the pleading to demonstrate the manner in which they can amend their pleadings to state their claims. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the [pleading] shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Here, Defendants have not shown the manner in which they could amend the answer to properly state their defenses against Plaintiff’s claims. However, given the liberal standard for permitting amendment of the pleadings, and the defects in the answer arising merely from a paucity of alleged facts, the Court will exercise its discretion to permit leave to amend the answer.

CONCLUSION:

Accordingly, the Demurrer to the Answer is OVERRULED with respect to the with respect to the second, sixth, seventh, eighth, ninth, and sixteenth affirmative defenses and otherwise SUSTAINED with leave to amend.

Defendant shall have 30 days leave to amend the answer from the date of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 24, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.