DEREK JODZIO, ET AL. VS HERNS CONSTRUCTION, A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: *******0089 Hearing Date: June 23, 2023 Dept: M

Case Number: *******0089 Hearing Date: June 1, 2023 Dept: M

Hearing Date: June 1, 2023

Moving Parties: Plaintiffs Derek Jodzio and Irina Jodzio

Responding Party: Defendants Herns Construction Inc. and Oscar Julian Hernandez

Demurrer to Answer

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is sustained with 20 days leave to amend as to the 2^nd, 3^rd, 4^th, 5^th, 9^th, 11^th, 12^th, 13^th, 14^th, 15^th, 16^th, 19^th, 20^th, 21^st, 22^nd, 23^rd, 24^th, 25^th, 26^th, 27^th, 28^th, and 29^th affirmative defenses.

The demurrer is sustained without leave to amend as to the 31^st affirmative defense.

The demurrer is overruled as to 6^th, 7^th, 8^th, 17^th, 30^th, 32^nd, 33^rd, and 34^th affirmative defenses.

BACKGROUND

On January 11, 2023, plaintiffs Derek Jodzio and Irina Jodzio filed a complaint against defendants Herns Construction and Oscar Julian Hernandez for (1) breach of contract, (2) negligence, (3) money paid by mistake, (4) declaratory relief, and (5) cancellation of written instrument.

On March 13, 2023, defendants/cross-complainants filed a cross-complaint against plaintiffs for (1) breach of contract, (2) common counts, and (3) foreclosure on mechanic’s lien.

On March 21, 2023, defendants filed an answer to the complaint with thirty-four (34) affirmative defenses.

LEGAL AUTHORITY

A demurrer tests the sufficiency of the pleading at issue as a matter of law. (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719.) A demurrer may be made to an answer that does not state facts sufficient to constitute a defense or is uncertain. (Code of Civ. Proc., 430.20(a), 430.20(b).) The ultimate facts alleged must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 (stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”).) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.)

Defenses should be relevant to a plaintiff’s legal claims and stated as carefully and with as much detail as the facts constituting the corresponding causes of action in the complaint. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) They should not be proffered in the form of “terse legal conclusions.” (Id.)

Nevertheless, an answer must be read in the context of the complaint, and it must be given the same liberal construction given to complaints. (See South Shore Land Co v. Petersen (1964) 226 Cal.App.2d 725, 733. [“The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer”]; Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) Ultimately, the question is whether the opposing party has “sufficient notice of the cause of action [or affirmative defense] stated against him so that he will be able to prepare his case.” (Furhman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 423, disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, 219.)

DISCUSSION

Plaintiffs demur to the 2^nd through 9^th and 11^th through 34^th affirmative defenses on the ground that they fail to state sufficient facts to constitute a defense and are uncertain.

1. Meet and Confer

Defendants argue that there was insufficient meet and confer. Plaintiffs’ counsel puts forward a declaration showing that on March 31, 2023, counsel emailed the proposed demurrer to defendants’ answer and requested to schedule a call. (Neumann Decl. Ex. 1.) Defendants’ counsel granted a one-week extension to allow time to meet and confer. (Neumann Decl. 2.) However, after meeting telephonically, the parties were unable to come to an agreement. (Neumann Decl. 3.)

Although defendants argue that plaintiffs failed to identify every problematic affirmative defense in their initial email, defendants do not state that plaintiffs did not discuss the other affirmative defenses in their telephone call.

Thus, plaintiffs have satisfied the meet and confer requirement.

2. Plaintiffs’ demurrer to the 2^nd, 3^rd, 4^th, 5^th, 9^th, 11^th, 12^th, 13^th, 14^th, 15^th, 16^th, 19^th, 20^th, 21^st, 22^nd, 23^rd, 24^th, 25^th, 26^th, 27^th, 28^th, and 29^th affirmative defenses is sustained with leave to amend as these affirmative defenses fail to state sufficient facts

A pleading survives a demurrer when it states sufficient facts. Many affirmative defenses in the answer filed by defendants do not state any facts. For example, defendants’ third affirmative defense reads in its entirety, “As a third separate and distinct affirmative defense, these answering Defendants allege that the damages suffered by Plaintiffs, if any, were the direct and proximate result of the conduct of Plaintiffs.” Defendants’ fourth affirmative defense reads in its entirety, “As a fourth, separate and distinct affirmative defense, these answering Defendants are informed and believe and thereon allege that Plaintiffs has engaged in conduct and activities with respect to the property and activities which are the subject of the Complaint and by reason of said activities is estopped from asserting any claim for damages or seeking any other relief against these answering Defendants.” Even though these affirmative defenses are clearly based on the legal theories of contributory negligence and estoppel, it is not adequate to simply repeat the definition of contributory negligence or estoppel and provide a bare legal conclusion. Defendants must assert facts as to why or how plaintiffs were contributorily negligent or estopped.

Defendants attempt to argue that they have stated sufficient facts in their cross-complaint to show contributory negligence, estoppel, and waiver. However, “[t]he determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) Defendants cite to no authority that allows the court to consider the cross-complaint in conjunction with their answer, because the answer responds to the complaint.

Along with the 3^rd and 4^th affirmative defenses, defendants’ 2^nd, 5^th, 9^th, 11^th, 12^th, 13^th, 14^th, 15^th, 16^th, 19^th, 20^th, 21^st, 22^nd, 23^rd, 24^th, 25^th, 26^th, 27^th, 28^th, and 29^th all suffer from the same deficiency, and are all “terse legal conclusions” devoid of facts. Therefore, Plaintiffs’ demurrer to these affirmative defenses is sustained with leave to amend.

3. Plaintiffs’ demurrer to the 31^st affirmative defense is sustained without leave to amend because it is not a defense

Defendants’ 31^st affirmative defense reads in its entirety: “As a thirty-first, separate and distinct affirmative defense, these answering Defendants presently do not have sufficient knowledge or information upon which to form a belief as to whether it has more additional, as yet stated, affirmative defenses. These answering Defendants reserve the right to assert additional affirmative defenses in the event discovery indicates to do so would be appropriate.”

This is not a defense, but merely an invocation of a right to amend. Thus, the demurrer to the 31^st affirmative defense is sustained without leave to amend.

4. Plaintiffs’ demurrer to the 6^th, 7^th, 8^th, 17^th, 18^th, and 30^th affirmative defenses is overruled

Defendants’ 6^th, 7^th, 8^th, 17^th, and 30^th affirmative defenses relate to defendants’ and plaintiffs’ performance under the alleged contract. Although these affirmative defenses are conclusory, the complaint is sufficiently specific so as to provide context and notice as to the affirmative defenses.

For instance, defendants’ 6^th affirmative defense states that defendants “rely upon each and every defense and limitation” contained in the contract between the parties. The subject contract is attached as Exhibit 1 to the complaint. The 7^th affirmative defense reads in part “Plaintiffs are barred from recovery because it failed to perform under the agreements that it purportedly entered into.” The complaint sufficiently outlines plaintiffs’ obligations under the contract, including their obligations to pay defendants for their work. (Complaint 21-22.) Likewise, the other affirmative defenses are related to plaintiffs’ lack of performance, or defendants’ proper performance under the agreement, and can be understood when looking at the context of the complaint.

Thus, plaintiffs’ demurrer to these affirmative defenses is overruled.

5. Plaintiffs’ demurrer to the 32^nd, 33^rd, and 34^th affirmative defenses is overruled

Defendants 32^nd, 33^rd, and 34^th affirmative defenses state sufficient facts. For example, the 32^nd affirmative defense reads as follows: “Plaintiffs are estopped from relying on the equitable alter ego doctrine because Plaintiffs, at all times, knew and agreed that these answering Defendants were entities separate from each other, that OSCAR JULIAN HERNANDEZ was not a party to the contract between Plaintiffs and HERNS CONSTRUCTION, and that defendant OSCAR JULIAN HERNANDEZ had no personal liability to Plaintiffs.” The 33^rd and 34^th affirmative defenses likewise state sufficient facts relating to the alter ego liability of these defendants.

In light of the alter ego allegations in the complaint, (see Complaint 9-10), these allegations are sufficient.

Plaintiffs are ordered to give notice.