Martin, Jesse vs. Martin, Guadalupe

2. Third Affirmative Defense (Waiver), on the ground that it fails to state facts sufficient to constitute a defense. Code of Civil Procedure Sec. 430.20(a).

3 Eighth Affirmative Defense (Fraud, Deceit and Misrepresentations by Plaintiff), on the ground that it fails to state facts sufficient to constitute a defense and is not pleaded with the required particularity. Code of Civil Procedure Sec. 430.20(a).

4. Tenth Affirmative Defense (No Breach by Defendant), on the ground that it pleads no new matter and fails to state facts sufficient to constitute a defense. Code of Civil Procedure Sec. 430.20(a).

5. Eleventh Affirmative Defense (No Damages), on the ground that it pleads no new matter and fails to state facts sufficient to constitute a defense. Code of Civil Procedure Sec. 430.20(a).

6. Thirteenth Affirmative Defense (Occupancy of the Premises), on the ground that it pleads no cognizable defense and no new matter, and fails to state facts sufficient to constitute a defense. Code of Civil Procedure Sec. 430.20(a).

7. Seventeenth Affirmative Defense (Good Faith), on the ground that it pleads no new matter and fails to state facts sufficient to constitute a defense. Code of Civil Procedure Sec. 430.20(a).

Further, Plaintiff moves to strike: 1. Thirteenth Affirmative Defense (Occupancy of the Premises), in its entirety, as redundant and irrelevant matter; 2. Eighteenth Affirmative Defense (Reservation of Additional Affirmative Defenses), in its entirety, as improper and irrelevant matter; 3. Paragraph 2 of the Prayer, to the extent it seeks an award of "reasonable attorneys' fees," as a request for relief not supported by contract or statute. In opposition, Defendant argues sufficient pleading of the affirmative defenses at issue and that the issue of attorneys' fees is one of proof.

(1) Demurrer - Authority and Analysis

Code of Civil Procedure section 430.20(a) permits a demurrer to an answer where the answer does not state facts sufficient to constitute a defense. (Timberidge Enters. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880.) An answer to a complaint must contain: "(1) The general or specific denial of the material allegations of the complaint controverted by the defendant[;] [and] (2) A statement of any new matter constituting a defense." (Code Civ. Proc. Sec. 431.30(b).) The phrase "new matter" refers to something relied upon by a defendant which the plaintiff does not put at issue. (See Department of Finance v.

City of Merced (2019) 33 Cal. App. 5th 286, 294-295.) As courts have explained, "[w]hat is put in issue by a denial is limited to the allegations of the complaint ... A defense in the nature of 'yes, those allegations are true, but ... ' is not put in issue by the denial." (FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 383-384).

With regard to pleading requirements for "new matters" in an answer, the same pleading of ultimate facts rather than legal conclusions is required as in pleading the complaint. In particular, the answer must set forth facts "as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint." (Id. at 384.) An affirmative defense set forth in an answer will lie when the facts alleged in that defense constitute "new matter," i.e., facts relied on by the defendant that the plaintiff's complaint has not already put at issue. (State Farm Mutual Auto Ins.

Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725). Where the text of an affirmative defense merely contradicts an essential allegation of the plaintiff's complaint, the affirmative defense does not set forth facts that constitute "new matter" sufficient to sustain the affirmative defense, but only a traverse. (Id.) A new matter is one in which the defendant has the burden of proof. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.) An affirmative defense must be pleaded with the same sufficient ultimate facts - and not "evidentiary" matter or "legal conclusions" - that a plaintiff would be required to set forth in a complaint. (Youndall v.

Kaufman (1921) 55 Cal.App.363, 368.) The answer must aver facts "as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

Second Affirmative Defense (Laches)

A defendant must plead facts giving rise to laches in the answer. (Protopappas v. Protopappas (1963) 213 Cal.App.2d 659, 664-665 ["facts justifying the defense of laches must appear in the pleadings"].) The Court agrees that the amended answer does not allege "new matter" in support of this defense and sustains the demurrer with leave to amend.

Third Affirmative Defense (Waiver)

Waiver is an affirmative defense, "and a defendant desiring to take advantage of it must set up in his answer the facts upon which he bases his claim." (Wienke v. Smith (1918) 179 Cal. 220, 225.) The Court agrees that the amended answer does not allege "new matter" in support of this defense and sustains the demurrer with leave to amend.

Eighth Affirmative Defense (Fraud, Deceit and Misrepresentations by Plaintiff)

To establish the defense of fraud when alleged as an affirmative defense, the defendant must prove: (1) that the plaintiff made a fraudulent representation; (2) that the plaintiff knew the representation was not true; (3) that the plaintiff made the representation to persuade the defendant to agree to the contract; (4) that the defendant reasonably relied on this representation; and that the defendant would not have entered into the contract if he had know the representation was not true. See, (See CACI 335.) The Court further agrees that the heighted pleading requirements as to specific that are necessary to plead fraud as a cause of action apply here. The Court agrees that the amended answer does not allege "new matter" in support of this defense and sustains the demurrer with leave to amend.

Tenth Affirmative Defense (No Breach by Defendant)

As breach is an element of the cause of action for breach of contract, the Court does not consider this to be an affirmative defense, but instead is substantiated by the general denial to the facts of the complaint, including that the contract was breached. As such, the Court sustains the demurrer without leave to amend.

Eleventh Affirmative Defense (No Damages)

Similarly, as damages are an element of some of the causes of action pled in the complaint, the Court does not consider this to be an affirmative defense, but instead is substantiated by the general denial to the facts of the complaint. As such, the Court sustains the demurrer without leave to amend.

Thirteenth Affirmative Defense (Occupancy of the Premises)

Here, Plaintiff argues that occupancy of partnership property by a general partner is not a defense to a use of action and that no new matter is pled because allegations of the complaint are restated in support thereof. However, to the extent that these allegations were denied by the general denial, the Court finds the repleading of them here constitutes sufficient "new matter" in support of the defense. As such, the Court overrules the demurrer here.

Seventeenth Affirmative Defense (Good Faith)

The context of "good faith" constitutes a response outside the scope of the underlying complaint, and therefore places a burden on defendant to support the allegations. It is unclear to the Court whether this constitutes an affirmative defense, but in any event, the amended answer fails to sufficiently set forth the requisite new matter on which the defense is based. The Court finds that the amended answer does not allege "new matter" in support of this defense and sustains the demurrer with leave to amend.

Leave to Amend

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish an affirmative defense under any possible legal theory or it is reasonably possible that the party can amend to do so. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226. [as to complaints and causes of action].) Therefore, as to the Second Affirmative Defense (Laches), Third Affirmative Defense (Waiver), Eighth Affirmative Defense (Fraud, Deceit and Misrepresentations by Plaintiff and Seventeenth Affirmative Defense (Good Faith), the Court sustains the demurrer with leave to amend Defendants shall have ten (10) days to file a further amended answer.

(2) Motion to Strike - Authority and Analysis

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., Sec. 436(a).) The court may also strike all or any part of any 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. Sec. 436(b).) This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc Sec. 437.) "When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend." (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Thirteenth Affirmative Defense (Occupancy of the Premises)

The Court has overruled the demurrer above as to this affirmative defense and therefore will deny the motion strike thereto for the same reasons

Eighteenth Affirmative Defense (Reservation of Additional Affirmative Defenses)

The Court will strike the reservation of other defenses without leave to amend, noting that a motion for leave to amend the answer to assert discovered additional affirmative defenses remains an option for the Defendants.

Paragraph 2 of the Prayer - "Reasonable Attorneys' Fees"

The Court notes that the partition action permits recovery of "...(a) Reasonable attorney's fees incurred or paid by a party for the common benefit..." (Code Civ. Proc. Sec. 874.010.) As such, the Court denies the motion to strike as to this portion of the prayer.

(3) Cross-Defendant's Motion to Strike Portions of First Amended Cross-Complaint

Facts

The first amended cross-complaint pleads causes of action for breach of fiduciary duty, accounting and dissolution of partnership. Relevant here, Cross-Complainants allege: "The expenses, upkeep and other items paid by G. MARTIN and owed by J. MARTIN include, but are not limited to, the following: a. Rent for nine years of usage by J. MARTIN of office/shop/yard at Teapot Dome Property. b. Value of inventory (working power tools) unilaterally sold by J. MARTIN, which proceeds should have been shared equally with G.

MARTIN c. Fuel and lodging costs d. Mileage costs." (FAXC P.10.) Further, as to breach of fiduciary duty, that "In addition, based on his intentional and malicious conduct, G. MARTIN is entitled to recovery of exemplary and punitive damages in an amount according to proof." (FAXC P.18.) Additionally, the prayer pleads "For exemplary and punitive damages in an amount according to proof," compensatory and special damages sought on the Second Cause of Action for Accounting and for attorney's fees and costs of suit incurred herein, as permitted by law" (FAXC - Prayer P.P.2, 4, 5, 9.)

Cross-Complainant seeks to strike the following: 1. Paragraph 10(a), in its entirety: "Rent for nine years of usage by J. MARTIN of office/shop/yard at Teapot Dome Property."

2. Paragraph 18, in its entirety: "In addition, based on his intentional and malicious conduct, G. MARTIN is entitled to recovery of exemplary and punitive damages in an amount according to proof."

3. Paragraph 2 of the Prayer, in its entirety: "For exemplary and punitive damages in an amount according to proof."

4. Paragraphs 4 and 5 of the Prayer (compensatory and special damages sought on the Second Cause of Action for Accounting).

5. Paragraph 9 of the Prayer, in its entirety: "For attorney's fees and costs of suit incurred herein, as permitted by law"

In opposition, Cross-Complainant argues punitive damages are available in context of a breach of fiduciary duty claim, that the attorney fee claim is a matter of proof and that the past due rent claims in paragraph 10(a) is a "non-exclusive list of unpaid items" and not a specific list of damages.

Authority and Analysis

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., Sec. 436(a).) The court may also strike all or any part of any 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. Sec. 436(b).) This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc Sec. 437.) "When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend." (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

No. 1 - Paragraph 10(a), in its entirety: "Rent for nine years of usage by J. MARTIN of office/shop/yard at Teapot Dome Property."

Here, Cross-Defendant argues that the statute of limitations reaches back no more than four years from the filing of the cross-complaint under the breach of fiduciary duty cause of action under Code of Civil Procedure section 343 and therefore seeking five additional years of rent beyond the four year period is subject to the motion to strike. As noted above, the Court may strike irrelevant matter, which includes references to damages beyond the four year statutory period. The Court agrees and grants the motion as to No. 1 with leave to amend. Cross-Complainant shall have ten (10) days to file an amended cross-complaint as to this issue.

No. 2 - Paragraph 18, in its entirety: "In addition, based on his intentional and malicious conduct, G. MARTIN is entitled to recovery of exemplary and punitive damages in an amount according to proof" and No. 3 - Paragraph 2 of the Prayer, in its entirety: "For exemplary and punitive damages in an amount according to proof."

In reviewing a motion challenging the sufficiency of punitive damages allegations, the Court must consider whether the factual allegations concerning the actual conduct alleged "apprises the adversary of the factual basis of the claim. [Citations.]" (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 234.) While punitive damages appear available as to breach of fiduciary duty, the claim for such damages requires allegations beyond the mere commission of a tort. (Taylor v.

Superior Court (1979) 24 Cal.3d 890, 894-895.) "Notwithstanding relaxed pleading criteria" permissible with other claims, punitive damages "demand firm allegations." (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) "[P]unitive damages are available in cases where the trier of fact finds slander per se," provided the defendant is guilty of malice, fraud, or oppression. (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 557; see Civ. Code, Sec. 3294, subd. (a).) "Oppression," "fraud" and "malice" each describe discrete grounds for an award of punitive damages. "Civil Code section 3294 provides for recovery of exemplary damages for either or all of the three defined delicts -- oppression, fraud or malice." (Pistorius v.

Prudential Insurance Co. (1981) 123 Cal.App.3d 541, 556, fn. 8) Civil Code section 3294, subdivision (c) defines the terms "malice," "oppression," and "fraud" for purposes of punitive damages liability: "(1) 'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [P.] (2) 'Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. [P.] (3) 'Fraud' means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury."

Here, the complaint merely alleges "knowingly and intentionally breach[] [of] fiduciary duties" which does not rise to malice, fraud or oppression. (FAXC P.16) Therefore, the Court grants the motion to strike with leave to amend as to Nos. 2 and 3. Cross-Complainant shall have ten (10) days to file an amended cross-complaint as to this issue.

No. 4 - Paragraphs 4 and 5 of the Prayer (compensatory and special damages sought on the Second Cause of Action for Accounting).

"...[T]he nature of a cause of action in accounting is unique in that it is a means of discovery. An accounting is a 'species of disclosure, predicated upon the plaintiff's legal inability to determine how much money, if any, is due.' [citation omitted] Thus, the purpose of the accounting is, in part, to discover what, if any, sums are owed to the plaintiff, and an accounting may be used as a discovery device." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 180.) As such, the Court agrees that no damages are available as to this cause of action and grants the motion to strike No. 4 without leave to amend.

No. 5 - Paragraph 9 of the Prayer, in its entirety: "For attorney's fees and costs of suit incurred herein, as permitted by law"

The American rule holds that "each party must pay his [or her] own attorney fees." (Gary v. Don Miller & Assocs., Inc. (1984) 35 Cal.3d 498, 505). "Attorney fees are not recoverable as costs unless a statute or contract expressly authorizes them." (Sessions Payroll Management, Inc. v. Noble Const. Co., Inc. (2000) 84 Cal.App.4th 671, 677.) Here, Cross-Defendant argues that attorneys fees are not available as to the causes of action pled for breach of fiduciary duty, accounting and dissolution of partnership where the allegations pled an oral partnership agreement. As such, the Court agrees that no attorneys' fees are available as to these causes of action and grants the motion to strike No. 5 without leave to amend as to attorneys' fees. However, the Court will not strike the "costs of suit incurred herein" portion of Paragraph 9 of the prayer.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.