Demurrer to Verified Answer re: Partition
Case No.: VCU333369 Date: July 30, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Demurrer to Verified Answer re: Partition Tentative Ruling: To overrule the demurer as to compliance with section 872.410(a) and (b); to sustain the demurrer with leave to amend as to the affirmative defense; Defendant shall have ten (10) days to file an amended answer setting forth affirmative defenses and "new matter" in support thereof. Facts In response to the verified complaint for partition, Defendant Hulsey filed a verified answer which averred to portions of the complaint as setting forth legal conclusions requiring neither admission or denial, admitted portions of the complaint, denied portions of the complaint and stated: "Hulsey admits Plaintiff appears as a record % interest holder in the subject property, however, Plaintiff executed and delivered a quitclaim deed to him in 2013 taking herself off title prior to the filing of this action; Hulsey alleges that Hulsey should be full owner of the subject property."
Further, Defendant denied every allegation in the prayer and set out a single affirmative defense stating "As an affirmative defense, this answering defendant alleges that it presently has insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses available. This answering defendant hereby reserves the right to assert additional defenses in the event that discovery indicates that they would be appropriate." Plaintiff demurrers to the answer on grounds that it fails to comply with Code of Civil Procedure section 872.410 as to an interest of Defendant in the property and setting forth facts to controvert material allegations.
Further, Plaintiff demurrers to the affirmative defense on grounds of uncertainty. In opposition, Defendant argues the answer sufficiently asserts the required information to respond to a partition action and that no affirmative defenses are pled. 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.) 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].) Answer re: Partition Actions Code of Civil Procedure section 872.410 entitled "Contents of answer" states: The answer shall set forth: (a) Any interest the defendant has or claims in the property. (b) Any facts tending to controvert such material allegations of the complaint as the defendant does not wish to be taken as true. (c) Where the defendant seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.
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Here, subsections (a) and (b) are satisfied by the statement "With respect to paragraph 3 and 4 of the Complaint. Hulsey admits Plaintiff appears as a record 1/2 interest holder in the subject property, however, Plaintiff executed and delivered a quitclaim deed to him in 2013 taking herself off title prior to the filing of this action; Hulsey alleges that Hulsey should be full owner of the subject property." Defendant states 100% interest in the property based upon the execution of a 2013 quitclaim deed, noting that the 1/2 interest held based on the recorded documents.
Because the facts alleged are that the deed was executed in 2013, the Court does not find issue as to whether Defendant alleges current ownership of the Subject Property. This is sufficient to satisfy section 872.410. Therefore, the Court overrules the demurrer on this issue. Answer re: Affirmative Defenses An answer to a complaint must contain: "...(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.) Here, this affirmative defense essentially reserves any other affirmative defense, which fails to assert new matter or state an affirmative defense supported by such new matter. Therefore, the Court sustains the demurrer with leave to amend as to the affirmative defenses. 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. Re: Cisneros Renteria, Alicia et al vs. Ford Motor Company, a Delaware corporation