Tentative Ruling

   
Re:

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John Pevyhouse v. Karen Higgens?
? Superior Court No. 15CECG03343
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Hearing Date:

 

Wednesday, October 19, 2016 (Dept. 501)
Motion: (1) Plaintiffs? Demurrer to Answer
 

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(2) Plaitniffs? Motion to Strike Answer
Tentative Ruling: ?

 

To Sustain demurrer to:

  • Second Affirmative Defense (1);
  • Third Affirmative Defense (1) and (3);
  • Forth Affirmative Defense (1) and (3);
  • Fifth Affirmative Defense (1) and (3);
  • Seventh Affirmative Defense (1) concerning Attorney?s Fees only;
  • Eighth Affirmative Defense (1);
  • Ninth Affirmative Defense (1);
  • Tenth Affirmative Defense (1) concerning Discharge only;
  • Eleventh Affirmative Defense (1);
  • Twelfth Affirmative Defense (1) concerning Reservation of Rights only and (3);
  • Thirteenth Affirmative Defense (1) and (3) concerning Comparative Fault of Third

Parties and Apportionment only;

  • Fifteenth Affirmative Defense (1) and (3) concerning Fault of Third Parties and

Apportionment only;

  • Sixteenth Affirmative Defense (1);
  • Seventeenth Affirmative Defense (1);
  • Nineteenth Affirmative Defense (1) and (3) concerning Fault of Third Parties and

Comparative Fault of Third Parties only; ?

  • Twentieth Affirmative Defense (1);
  • Twenty-Sixth Affirmative Defense (1) and (4); – Twenty-Eighth Affirmative Defense (1).

 

To Overrule demurrer to:

  • Second Affirmative Defense (2);
  • Third Affirmative Defense (2) and (4);
  • Forth Affirmative Defense (4);
  • Fifth Affirmative Defense (2);
  • Sixth Affirmative Defense;
  • Seventh Affirmative Defense (1) concerning Costs only and (2);
  • Eighth Affirmative Defense (2);
  • Ninth Affirmative Defense (2) and (3);
  • Tenth Affirmative Defense (1) concerning Performance only, (2) and (3);
  • Eleventh Affirmative Defense (2) and (3);
  • Twelfth Affirmative Defense (1) concerning Conclusory Terms only and (2);
  • Thirteenth Affirmative Defense (2) and (3) concerning Unclean Hands only;
  • Fifteenth Affirmative Defense (2) and (3) concerning Unclean Hands only;
  • Sixteenth Affirmative Defense (2);
  • Seventeenth Affirmative Defense (2) and (3);
  • Nineteenth Affirmative Defense (2) and (3) concerning Unclean Hands only;
  • Twentieth Affirmative Defense (2);
  • Twenty-Sixth Affirmative Defense (2) and (3); – Twenty-Seventh Affirmative Defense;? – Twenty-Eighth Affirmative Defense (2).

 

To Order Plaintiffs? motion to strike Defendant?s Seventh Affirmative Defense off? calendar, concerning Attorney?s Fees only.

 

To Deny Plaintiff?s motion to strike Defendant?s Seventh Affirmative Defense, concerning Costs only.

 

To Grant Plaintiff?s motion to strike Defendant?s prayer for attorney?s fees.

 

To grant Defendant 10 days leave to amend. (Cal. Rules of Court, rule 3.1320(g).) The time in which an amended answer may be filed will run from service by the clerk of the minute order. (Code Civ. Proc., ? 472b.)

 

Explanation:

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DEMURRER

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Demurrer to Second Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Uncertainty

A complaint is uncertain when it is so bad 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. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

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Here, all causes of action are based on the same clear allegations: Decedent loaned

Defendant Higgins $80,000 and she hasn?t paid it all back. (FAC, ?? 10-11, 13.) Therefore, to adequately assert uncertainty, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

(2) Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?The Plaintiffs? First Amended Complaint is uncertain.? (Answer, ? 2.) Demurrer overruled.

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Demurrer to Third Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Estoppel, Waiver, Laches of Action

– Estoppel

Equitable estoppel is a defensive doctrine operating to prevent one party from taking an unfair advantage of another. (Franklin v. Merida (1868) 35 Cal. 558, 567; In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, 658; Green v. Travelers Indemnity Co.

(1986) 185 Cal.App.3d 544, 555; In re Estate of Hafner (1986) 184 Cal.App.3d 1371, 1395; San Diego Municipal Credit Union v. Smith (1986) 176 Cal.App.3d 919, 922?23; Kleinecke

v. Montecito Water District (1983) 147 Cal.App.3d 240, 245; People ex rel. Department of Public Works v. Volz (1972) 25 Cal.App.3d 480, 488; Meyer v. Glenmoor Homes, Inc. (1966) 246 Cal.App.2d 242, 267.)

 

The elements of estoppel must be pleaded in the answer with sufficient detail to disclose the facts on which the party asserting estoppel relies. (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737; Santa Barbara County Taxpayer Ass’n v. Board of Supervisors (1989) 209 Cal.App.3d 940, 947; Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 467; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 304;

Division of Labor Law Enforcement v. Transpacific Transp. Co. (1979) 88 Cal.App.3d 823, 828.) However, when the complaint itself sets out the facts that establish equitable estoppel, the court may find that the answer need not expressly include the defense. (Smith v. Anglo?California Trust Co. (1928) 205 Cal. 496, 504?05, disapproved on other grounds in Lucas v. Hamm (1961) 56 Cal.2d 583, 591; Insurance Co. of the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1321, disapproved on other grounds in Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 838?39 & n.12.)

 

Here, there are no facts in the FAC to indicate that Defendant was unfairly taken advantage of. Therefore, to adequately assert estoppel, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

– Waiver

Waiver exists when plaintiff has waived whatever right or privilege is essential to the plaintiff’s claim. (Roesch v. De Mota (1944) 24 Cal.2d 563, 572.)

 

The facts supporting waiver must be specifically pleaded, unless the complaint itself sets out the facts supporting a finding of waiver. (Aetna Casualty & Surety Co. v. Richmond (1977) 76 Cal.App.3d 645, 653; Windsor Mills v. Richard B. Smith, Inc. (1969) 272

Cal.App.2d 336, 342; Meyer Koulish Co. v. Cannon (1963) 213 Cal.App.2d 419, 432;

Insurance Co. of the West, supra, 195 Cal.App.3d 1308 at p. 1321?22; Phoenix Mut. Life Ins. Co. v. Birkelund (1946) 29 Cal.2d 352.)

 

Here, there are no facts in the FAC to support waiver. Plaintiffs allege that Decedent loaned Defendant money with the understanding that she would pay it back. (FAC, ?10.) Therefore, to adequately assert waiver, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

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– Laches

Laches is neglect or failure on the part of a plaintiff to assert a right, which results in prejudice to the defendant. (Columbia Engineering Co. v. Joiner (1965) 231 Cal.App.2d 837, 857; Howard v. Societa Di Unione E Beneficenza Italiana (1944) 62 Cal.App.2d 842, 851?52, quoting De Mattos v. McGovern (1938) 25 Cal.App.2d 429, 433.) ?The elements of laches are (1) the failure to assert a right (2) for some appreciable period so as to amount to unreasonable delay (3) which results in prejudice to the adverse party.? (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 642; Magic Kitchen LLC v. Good Things Int’l Ltd. (2007) 153 Cal.App.4th 1144, 1157.)

 

When the presence of laches and prejudice is revealed on the face of the complaint, the defense is established pending proof of any excuse by the plaintiff. (Williams v. Smith (1954) 127 Cal.App.2d 607, 612; Phoenix Mut. Life Ins. Co., supra, 29 Cal.2d 352 at p. 363; Victor Oil Co. v. Drum (1920) 184 Cal. 226, 242?43; Bodily v. Parkmont Village Green Home Owners Ass’n (1980) 104 Cal.App.3d 348, 358.) However, when the complaint is silent on the issue, a general denial alone does not place laches in issue. (Hunter v. Croysdill (1959) 169 Cal.App.2d 307, 318.) And the defendant must plead not only the defense of laches but also the facts giving rise to laches in the answer. (Protopappas v. Protopappas (1963) 213 Cal.App.2d 659, 664?65; Hamud v. Hawthorne (1959) 52 Cal.2d 78, 84; Carlson v. Lindauer (1953) 119 Cal.App.2d 292, 309; Chilberg v.

City of Los Angeles (1942) 54 Cal.App.2d 99, 101; Garrity v. Miller (1928) 204 Cal. 454, 455.) As one court explained, a pleading stating ?plaintiff’s Complaint is barred by laches? is insufficient as it fails to plead facts giving rise to that defense. (Hollenbeck Lodge v. Wilshire Boulevard Temple (1959) 175 Cal.App.2d 469, 475.)

 

Here, there are no facts in the FAC to support laches or prejudice. Plaintiffs allege that

Defendant breached the contract in October 2015 (FAC, ? 16); they filed this case October 27, 2015. Therefore, to adequately assert laches, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant clearly asserts that these defenses apply to ?[E]ach and every cause of action.? (Answer, ? 3.) Demurrer overruled.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Here, Defendant asserts waiver twice, both times lacking new matter. (Answer, ? 5.) It is therefore impossible to determine how they differ. Demurrer sustained. ?

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  • Code Civ. Proc., ? 430.20 subd. (b): failure to label

Here, Defendant alleges Estoppel, Waiver, and Laches all as part of the Third Affirmative Defense. Though technically inappropriate, it is obvious based on way the answer is formatted, that Defendant is alleging each defense separately. Each defense is part of a sub-heading, separated by commas. (Answer, ? 3.) Demurrer overruled.

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Demurrer to Fourth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Statute of Limitations

The statute of limitations can be raised as an affirmative defense in one of two ways.

The first is to allege all the facts demonstrating that the action is barred. (Hall v.

Chamberlain (1948) 31 Cal.2d 673, 680; Brown v. World Church (1969) 272 Cal.App.2d 684, 691.) The second is to comply with Code of Civil Procedure section 458 and plead that the cause of action is barred by the specific section and subdivision at issue. (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91; Brown, supra, 272 Cal.App.2d 684 at p. 691; Mysel v. Gross (1977) 70 Cal.App.3d Supp. 10, 15; Davenport v. Stratton (1944) 24 Cal.2d 232, 246-247.)

 

Here, Defendant neither pleads facts nor cites to any specific law. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant clearly asserts that these defenses apply to ?[E]ach and every cause of action.? (Answer, ? 4.) Demurrer overruled.

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  • Code Civ. Proc., ? 430.20 subd. (b): specificity

A pleading that fails to specify both the applicable statute and subdivision ?raise(s) no issue and present(s) no defense.? (Davenport, supra, 24 Cal.2d 232 at p. 246-247; Brown, supra, 272 Cal.App.2d 684 at p. 691.)

 

Here, although all causes of action are governed by Code of Civil Procedure section 339, it has many subdivisions. Therefore, Defendant?s failure to state the statute of limitations with particularity creates uncertainty. Demurrer sustained.

 

Demurrer to Fifth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Waiver/No Damages

See Demurrer to Third Affirmative Defense section (1). Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?Decedent waived any? (Answer, ? 5 [emphasis added].) Demurrer overruled.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

See Demurrer to Third Affirmative Defense section (3). Demurrer sustained.

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Demurrer to Sixth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): No Entitlement to General, Special and/or Consequential Damages

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Here, Defendant adequately asserts a traverse to Plaintiff?s plea for damages. Demurrer overruled.

(2) Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It refers to the entire ?First Amended Complaint.? (Answer, ? 6 [emphasis added].) Demurrer overruled.

Demurrer to Seventh Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): No Entitlement to Attorney?s Fees or Cost of Suit – Attorney?s Fees

No prayer for attorney?s fees appears on the face of the complaint. Therefore, to adequately support this assertion, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

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– Costs

Generally, the ?prevailing party? is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc., ? 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th 308, 312314.) Therefore, to assert that Plaintiffs are not entitled to costs is the same as a general denial. Here, Defendant?s pleading is sufficient. Demurrer overruled.

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(2) Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?In no event are Plaintiffs entitled to attorney?s fees.? (Answer, ? 7 [emphasis added].) Demurrer overruled.

 

Demurrer to Eighth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Failure to Mitigate Damages

A plaintiff may not recover damages that could have been avoided if reasonable and appropriate mitigation efforts within the plaintiff’s means had been taken. (Steelduct

Co. v. Henger?Seltzer Co. (1945) 26 Cal.2d 634, 649; Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 189.)

 

Where the complaint is silent as to the steps Plaintiff has taken to mitigate damages, the defense must be affirmatively alleged with new matter showing that plaintiff could have mitigated but did not. (Erler v. Five Points Motors (1967) 249 Cal.App.2d 560, 568; Hawaiian Pineapple Co. v. Eckert Engineering Corp. (1954) 129 Cal.App.2d 371.)

 

Here, there are no facts in the FAC to indicate mitigation. Therefore, to adequately assert failure to mitigate, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

(2) Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?Plaintiffs have failed? to mitigate the damage alleged in the First Amended Complaint.? (Answer, ? 8 [emphasis added].) Demurrer overruled.

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Demurrer to Ninth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Justification

Justification is a defense that acknowledges at least a portion of the conduct of which the plaintiff complains but asserts that the defendant’s conduct was authorized or sanctioned by law. (Moore v. Conliffe (1994) 7 Cal.4th 634.)

 

Justification must be asserted as an affirmative defense in the answer unless it appears on the face of the complaint. (Herron v. State Farm Mutual Ins. Co. (1961) 56 Cal.2d 202, 207; A.F. Arnold & Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 713?14 & n.2.)

 

Here, there are no facts in the FAC to support justification. Therefore, to adequately assert justification, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It applies to ?any of the acts, conduct or statements attributed to it by the First Amended Complaint.? (Answer, ? 9 [emphasis added].) Demurrer overruled.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Although many Courts use the terms privilege and justification interchangeably, they are different. (Aalgaard v. Merchants Nat’l Bank, Inc. (1990) 224 Cal.App.3d 674, 683 n.6; Environmental Planning & Information Council v. Superior Court (1984) 36 Cal.3d 188, 194 n.3.) Privilege is statutory and generally applicable to defamation. (Code Civ. Proc., ? 47.) Justification is non statutory and applies to virtually all torts. (Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33.) Demurrer overruled.

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Demurrer to Tenth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Performance/Discharge

– Performance

Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it. (Civ. Code ? 1473.)

 

Performance by payment may be raised by denial. (Davanay v. Eggenhoff (1872) 43

Cal. 395, 397; Bank of Shasta v. Boyd (1893) 99 Cal. 604, 606; Snodgrass v. Snodgrass (1927) 81 Cal.App. 360, 363.)

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Defendant adequately asserts performance via traverse. Demurrer overruled.

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– Discharge

Besides performance, contractual obligations can be discharged in several other ways (e.g. termination, cancellation, recession, release, accord and satisfaction, novation, modification, or account stated [1 Witkin, Summary 10th Contracts ? 924 (2005)].)

 

Discharge of a previously accrued liability must be must be specially pleaded. (Landis v. Morrissey (1886) 69 Cal. 83, 86.)

To adequately assert discharge, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action these defenses apply to. However, it is obvious that they apply to all causes of action. They apply to ?[A]ny duty or obligation, contractual or otherwise that the Plaintiffs claim is owed.? (Answer, ? 10 [emphasis added].) Demurrer overruled.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Unlike discharge and performance, an accord does not require full performance of an obligation. Rather, it is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. (Civ. Code ? 1521.) Demurrer overruled. ?

 

Demurrer to Eleventh Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Unclean Hands

When a party who seeks to set judicial machinery in motion and obtain some remedy, has violated conscience, good faith or other equitable principle in his prior conduct, then the doors of the court will be shut against him; the court will refuse to interfere on his behalf to acknowledge his right, or to afford him any remedy. (Civ. Code ? 3517;

Lynn v. Duckel (1956) 46 Cal.2d 845, 850; Moriarty v. Carlson (1960) 184 Cal.App.2d 51, 55; Stockton v. Ortiz (1975) 47 Cal.App.3d 183, 200.)

 

Unclean hands must be asserted as an affirmative defense in the answer unless it appears on the face of the complaint. (Allstead v. Laumeister (1911) 16 Cal.App. 59, 62; Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 726; Santoro v. Carbone (1972) 22 Cal.App.3d 721, 731, disapproved on other grounds in Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18.)

 

Here, there are no facts in the FAC to support unclean hands. Therefore, to adequately assert unclean hands, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant clearly asserts that this defense applies to ?each cause of action of the First Amended Complaint.? (Answer, ? 11.) Demurrer overruled.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Unclean hands differs from fault of third parties, comparative fault of third parties, and apportionment. Unclean hands only applies to Plaintiffs conduct whereas comparative fault applies to third parties as well. (Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1614; Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 133; Marquis v. St. Louis?San Francisco Ry. (1965) 234 Cal.App.2d 335, 340.) Demurrer overruled.

 

Demurrer to Twelfth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Conclusory Terms-Reservation of Rights – Conclusory Terms

A valid cause of action cannot be stated using conclusory terms. (McCaughey v.

Schuette (1897) 117 Cal. 223; Metropolis Trust & Savings Bank v. Monnier (1915) 169 Cal. 592, 596; Clement v. Dunn (1931) 114 Cal.App. 60, 63; Thompson v. Purdy (1931) 117

Cal.App. 565, 567; Foerst v. Hobro (1932) 125 Cal.App. 476; Smith v. Bentson (1932) 127

Cal.App.Supp. 789; Callaway v. Novotny (1932) 128 Cal.App. 166, 169; Sklar v. Franchise Tax Bd. (1986) 185 Cal.App.3d 616, 621.) However, it is unnecessary to assert the defense of failure to state a cause of action because it is not waived by omission. (Code of Civ. Proc., ? 430.80; In re Christopher C. (2010) 182 Cal.App.4th 73.) Demurrer overruled.

 

– Reservation of Rights

The proper method for adding additional defenses is outlined in Code of Civil

Procedure section 464 subd. (a). (see also People ex rel. Dept. Pub. Wks. v. Douglas (1971) 15 Cal.App.3d 814.)

 

Here, Defendant asserts his right to add additional defenses as an affirmative defense. This is improper. Demurrer sustained.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant clearly asserts that this defense applies to ?[T]he First Amended Complaint and each cause of action contained therein.? (Answer, ? 12.) Demurrer overruled.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Here, Defendant asserts reservation of rights twice, both times lacking new matter. (Answer, ? 26.) It is therefore impossible to determine how they differ. Demurrer sustained. ?

 

Demurrer to Thirteenth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Fault of Third Parties

Comparative fault or comparative or contributory negligence is conduct by the plaintiff that falls below the standard of care that the plaintiff is legally required to maintain under the particular circumstances at issue and that constitutes a contributing cause of the injury for which the plaintiff seeks damages from the defendant. (Sagadin v. Ripper

(1985) 175 Cal.App.3d 1141, 1161 n.8; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809; Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 500.)

 

Comparative fault requires special pleading unless the defense appears in the complaint. (Kenny v. Kennedy (1908) 9 Cal.App. 350, 351; Swink v. Gardena Club (1944) 65 Cal.App.2d 674, 680; Gerfers v. San Diego Transit System (1954) 126 Cal.App.2d 733, 735.) Further, if the defense is that the negligence of another affects the plaintiff’s right to recover, a plea of contributory negligence is not enough. The answer must allege the relationship or circumstances of agency, joint venture, control, etc., that call for the imputation of contributory negligence. (Campagna v. Market Street Ry. Co. (1944) 24 Cal.2d 304, 307; Travis v. Southern Pac. Co. (1962) 210 Cal.App.2d 410, 427.)

 

Here, there are no facts in the FAC even suggesting comparative fault. Therefore, to adequately assert comparative fault, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It applies to ?[T]he acts and/or omissions complained of by Plaintiffs.? (Answer, ? 13.) Demurrer overruled.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Here, Defendant asserts this defense two additional times, each lacking new matter. (Answer, ?? 15, 19.) It is therefore impossible to determine how they differ. Demurrer sustained as to Comparative Fault of Third Parties (Answer, ? 15) and Apportionment (Answer, ? 19). Demurrer overruled as to Unclean Hands (Answer, ? 11)?see Demurrer to Eleventh Affirmative Defense (3).

 

Demurrer to Fifteenth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Comparative Fault of Third Parties See Demurrer to Thirteenth Affirmative Defense (1). Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?any award made in favor of the Plaintiffs in this case must be reduced.? (Answer, ? 15 [emphasis added].) Demurrer overruled.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Here, Defendant asserts this defense two additional times, each lacking new matter. (Answer, ? 13, 19.) It is therefore impossible to determine how they differ. Demurrer sustained as to Fault of Third Parties (Answer, ? 13) and Apportionment (Answer, ? 19). Demurrer overruled as to Unclean Hands (Answer, ? 11)?see Demurrer to Eleventh Affirmative Defense (3).

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Demurrer to Sixteenth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Offset

A defendant may offset sums owing to the plaintiff against sums owing from plaintiff to defendant, with the result that the offsetting amounts are cancelled and the defendant is obligated to pay plaintiff only the net amount, if any. (Harrison v. Adams (19742) 20 Cal.2d 646, 648; California Canning Peach Growers v. Williams (1938) 11

Cal.2d 233, 240?41; Hughes Tool Co. v. Max Hinrichs Seed Co. (1980) 112 Cal.App.3d 194, 199?200.)

 

A claim of setoff is generally asserted in the answer with other defenses. (Title Ins. Co. of

Minnesota v. State Board of Equalization (1992) 4 Cal.4th 715, 731; Wallace v. Bear River

Water & Mining Co. (1861) 18 Cal. 461, 464; Bernard v. Mullott (1851) 1 Cal. 368;

American Nat’l Bank v. Stanfill (1988) 205 Cal.App.3d 1089, 1097; McDaniel v. City &

County of San Francisco (1968) 259 Cal.App.2d 356, 364; Kramer v. Associated Almond Growers (1931)111 Cal.App. 595, 600?601.) The facts supporting the setoff must be set forth with essentially the same format and detail as a cause of action. (Code Civ. Proc., ? 431.70; Wallace, supra 18 Cal. 461 at pp. 464?465.)

 

To adequately assert setoff, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

(2) Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?any liability must be offset.? (Answer, ? 16 [emphasis added].) Demurrer overruled.

 

Demurrer to Seventeenth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Privilege

One who otherwise would be liable for a tort is not liable if he acts in pursuance of and within the limits of a privilege of his own or of a privilege of another that was properly delegated to him. (Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 421.)

 

Privilege must be asserted as an affirmative defense in the answer (Layne v. Kirby (1930) 208 Cal. 694, 697; Cameron v. Wernick (1967) 251 Cal.App.2d 890, 894; Morris v. National Federation of the Blind (1961) 192 Cal.App.2d 162, 164; Jones v. Express Publishing Co. (1927) 87 Cal.App. 246, 255?56.)

 

To adequately assert privilege, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?Defendant was privileged in doing any/or all of the acts alleged in the First Amended Complaint.? (Answer, ? 17 [emphasis added].) Demurrer overruled.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative See Demurrer to Ninth Affirmative Defense (3). Demurrer overruled.

 

Demurrer to Nineteenth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Apportionment

See Demurrer to Thirteenth Affirmative Defense (1). Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It applies ?if damages were suffered ? as alleged in the First Amended Complaint.? (Answer, ? 19 [emphasis added].) Demurrer overruled.

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  • Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative

Here, Defendant asserts this defense two additional times, each lacking new matter. (Answer, ? 13, 15.) It is therefore impossible to determine how they differ. Demurrer sustained as to Fault of Third Parties (Answer, ? 13) and Comparative Fault (Answer, ? 15). Demurrer overruled as to Unclean Hands (Answer, ? 11)?see Demurrer to Eleventh Affirmative Defense (3).

Demurrer to Twentieth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Damages Not Foreseeable

Foreseeability is an element of negligence. It is used to determine the existence and scope of a duty. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 398-399, 403; Summit Fin’l Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 715.) Failure to allege foreseeability is a valid defense to negligence. (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 410; Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 292.)

 

Here, Plaintiffs do not plead negligence. Therefore, to adequately assert that damages were not foreseeable, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It applies to ?the damages asserted in the First Amended Complaint.? (Answer, ? 20 [emphasis added].) Demurrer overruled.

 

Demurrer to Twenty-Sixth Affirmative Defense

(1) Code Civ. Proc., ? 430.20 subd. (a): Accord and Satisfaction

Accord and satisfaction is the substitution of a new agreement for and in satisfaction of a pre-existing agreement between the same parties. (Civ. Code ? 1521; Moving Picture Machine Operators Union v. Glasgow Theaters, Inc. (1970) 6 Cal.App.3d 395, 402; B. &

W. Engineering Co. v. Beam (1913) 23 Cal.App. 164, 170; In re Marriage of Thompson

(1996) 41 Cal.App.4th 1049, 1058?59; Security First Nat’l Bank v. Rospaw (1951) 107 Cal.App.2d 220, 223?24.)

 

Accord and Satisfaction is a special defense and must be pleaded. (Hansen v. Fresno Jersey Farm Dairy Co. (1934) 220 Cal. 402, 409; Southern California Disinfecting Co. v.

Lomkin (1960) 183 Cal.App.2d 431, 444; Owens v. Noble (1946) 77 Cal.App.2d 209, 215; Peal v. Gulf Red Cedar Co. (1936) 15 Cal.App.2d 196, 199.) The pleading should contain the facts underlying the accord, demonstrating the existence of each of the elements of a contract and, in addition, the facts demonstrating full performance and resulting satisfaction. As to satisfaction, the pleading should allege first the parties’ agreement as to what conduct is required to constitute execution; that is, the execution of the accord either through performance of an act or through the making of a promise; and second, the happening of the required conduct. (Silvers v. Grossman (1920) 183 Cal. 696, 700, disapproved on other grounds in Mix v. Yoakum (1927) 200 Cal. 681; Riskas v. De La

Montanya (1956) 145 Cal.App.2d 636, 639?40; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 291?92.)

 

To adequately assert accord and satisfaction, Defendant must plead new matter using ultimate facts, not legal conclusions. Defendant fails to do so. Demurrer sustained.

 

(2) Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action

Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to all causes of action. It states, ?Plaintiff?s First

Amended Complaint is barred.? (Answer, ? 26 [emphasis added].) Demurrer overruled.

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(3) Code Civ. Proc., ? 430.20 subd. (b): defense is duplicative See Demurrer to Tenth Affirmative Defense (3). Demurrer overruled.

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(4) Code Civ. Proc., ? 430.20 subd. (c): failure to assert if contract is oral or written

Here, Defendant does not plead whether the accord was oral or written. Demurrer sustained.

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Demurrer to Twenty-Seventh Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Void for Vagueness/Ambiguity

Under California law, for a contact to be formed, the contract terms must be clear enough that the parties can understand what each is required to do. (Civ. Code ? 1550; Hynix Semiconductor Inc. v. Rambus Inc., 441 F.Supp.2d 1066 (N.D.Cal. 2006).)

 

Invalidating circumstances, such as lack of consent, that make the purported contract wholly void may be raised by denial. (see e.g. Leo F. Piazza Paving Co. v. Bebek &

Brkich (1956) 141 Cal.App.2d 226, 232; Lever v. Garoogian (1974) 41 Cal.App.3d 37, 39.)

 

Here, Defendant adequately asserts a traverse to Plaintiffs? allegations in cause of action one, breach of contract. Demurrer overruled.

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that when the Defendant refers to ?the contract claimed? (Answer, ? 27), it is in reference to cause of action one, since Plaintiff only pleads one cause of action for breach of contract. Demurrer overruled.

 

(4) Code Civ. Proc., ? 430.20 subd. (c): failure to assert if contract is oral or written This defense applies to the oral contract asserted by Plaintiff (see Demurrer to TwentySeventh Affirmative Defense (2).) Demurrer overruled.

 

Demurrer to Twenty-Eighth Affirmative Defense

  • Code Civ. Proc., ? 430.20 subd. (a): Further Affirmative Defenses See Demurrer to Twelfth Affirmative Defense. Demurrer sustained.

 

  • Code Civ. Proc., ? 430.20 subd. (b): defense does not refer to cause of action Here, Defendant does not explicitly specify which causes of action this defense applies to. However, it is obvious that it applies to the entire ?First Amended Complaint.? (Answer, p7 ? 26 [sic].) Demurrer overruled.

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MOTION TO STRIKE

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Seventh Affirmative Defense

– Attorney?s Fees

Demurrer to the Seventh Affirmative Defense, concerning Attorney?s Fees is sustained, so this issue is ordered off calendar.

 

– Costs

Generally, the ?prevailing party? is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc., ? 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Plancich v. United Parcel Service, Inc. (2011) 198 Cal.App.4th 308, 312314.) Therefore, Defendant?s assertion that Plaintiffs are not entitled to costs is the same as a general denial, which is always relevant and allowed. Here Defendant?s denial conforms to Code of Civil Procedure section 431.30. Motion to strike denied.

 

Prayer for Attorney?s Fees

?Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.? (Code Civ. Proc., ? 1021; Covenant Mutual Ins. Co. v. Young (1986) 179 Cal.App.3d 318, 321.)

 

Here, Defendant?s prayer seeks attorneys? fees. (Answer p. 7, ? 3.) However, there is no statutory basis to support the request and neither the FAC nor the Answer allege any agreement between the parties pertaining to attorney?s fees. And Defendant does not oppose Plaintiffs? motion on this basis. (Opposition, filed 10/5/16 p6, ? III (B).) Motion to strike granted.

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Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

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Tentative Ruling

Issued By: ?????????????????MWS????????? on 10/18/16

(Judge?s initials) ?????? (Date)