Nancy Bertelsen v. Karen Hossack, et al

Case Number

24CV02211

Case Type

Hearing Date / Time

Wed, 10/23/2024 - 10:00

Nature of Proceedings

Plaintiff Nancy Bertelsen’s Demurrer to Answer of Paul Moore and Kathleen Moore

Tentative Ruling

For Plaintiff Nancy Bertelsen: Jeremy L.A. Hill Edwards

For Defendant Karen Hossack: Mark L. Kiefer, Jacqueline Mittelstadt

For Defendants Paul Moore and Kathleen Moore: Ajay Sood, Paul A. Elkort, Robert A. Morgenstern

                       

RULING

For the reasons set forth herein, the demurrer to the answer of Paul Moore and Kathleen Moore is sustained with leave to amend. Paul Moore and Kathleen Moore shall file and serve their amended answer to Plaintiff’s first amended complaint no later than November 6, 2024.

The Court confirms the trial date 7/16/25 and MSC date 6/20/25 and Final CMC date 5/14/25.

Background

This action commenced on April 19, 2024, by the filing of the complaint by Plaintiff Nancy Bertelsen (“Plaintiff”) against Defendants Karen Hossack (“Hossack”), Paul Moore, and Kathleen Moore (collectively “the Moore’s”). Plaintiff filed her operative first amended complaint (“FAC”) on July 16, 2024, setting forth causes of action for trespass, negligence, permanent injunction, and ejectment.

As alleged in the FAC:

Hossack in the owner of 760 Mission Park Drive. (FAC, ¶ 3.) (Note: Although not stated in the FAC, according to the civil case coversheet addendum, the property is in Santa Barbara.) The Moore’s rented 760 Mission Park drive from “Defendant Moore.” (FAC, ¶ 4.) (Note: This appears to be a typographical error contained in the FAC.)

In June 1968, Plaintiff acquired all right, title, and interest in 762 Mission Park Drive. (FAC, ¶ 9.) The Moore’s are Plaintiff’s neighbors, and their respective properties adjoin each other at the north-eastern and south-eastern boundaries. (FAC, ¶¶ 10, 12.)

In April 2022, with the knowledge and consent of Hossack, the Moore’s daughter’s boyfriend “maintained and caused to exist” a wooden fence with metal poles which was built along the north-east boundary lines of Defendants’ property and encroaches on Plaintiff’s property. (FAC, ¶ 14.)

Approximately April 20, 2023, to April 23, 2023, with the knowledge and consent of Hossack, the Moore’s maintained and caused to exist a second wooden fence with metal poles which was built along the south-east boundary lines of Defendants’ property and encroaches on Plaintiff’s property. (FAC, ¶ 15.)

On August 25, 2023, Plaintiff hired a licensed surveyor and confirmed that the fences encroached onto Plaintiff’s property by several dozen feet. (FAC, ¶ 17.)

On February 24, 2024, Plaintiff, through her attorney, demanded that the encroachments be removed but Defendants have refused. (FAC, ¶ 21.)

On August 29, 2024, the Moore’s filed their answer to the FAC, asserting a general denial and 21 affirmative defenses.

Following sufficient meet and confer efforts, Plaintiff now generally demurs to the answer and specially demurs to each of the Moore’s affirmative defenses contained in the Moore’s answer on the grounds that the Moore’s answer fails to state facts sufficient to constitute defenses, in that the Moore’s have not pled any facts in support of any of their affirmative defenses.

The Moore’s oppose the demurrer.

Analysis

“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.

“(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc. § 430.20.)

“Under general rules of civil procedure, an answer must contain ‘[t]he general or specific denial of the material allegations of the complaint controverted by the Defendant’ and ‘[a] statement of any new matter constituting a defense.’ (Code Civ. Proc., § 431.30, subd. (b)(1) & (2).) ‘The phrase “new matter” refers to something relied on by a Defendant which is not put in issue by the Plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.”’ [Citation.]” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.) “Such ‘new matter’ is also known as ‘an affirmative defense.’ [Citation.] Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather . . . as facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” ’ [Citation.]” (Id. at pp. 812-813.)

“Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead, it is whether the answer raises a defense to the Plaintiff’s stated cause of action.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) “The allegations of the pleading demurred to must be regarded as true [citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [citations], or the construction placed on an instrument pleaded therein [citation], or facts impossible in law [citation], or allegations contrary to facts of which a Court may take judicial knowledge.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

 “There are, however, certain important differences between these two kinds of demurrer. An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer. 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. [Citations.] This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. [Citations.] Another rule, particularly applicable to the case of a demurrer to the answer, is that each so-called defense must be considered separately without regard to any other defense. [Citations.] Accordingly, a ‘separately stated defense or counterclaim which is sufficient in form and substance when viewed in isolation does not become insufficient when, upon looking at the answer as a whole, that defense or counterclaim appears inconsistent with or repugnant to other parts of the answer.’ [Citations.]” (South Shore Land Co. v. Petersen, supra, 226 Cal.App.2d at pp. 733-734, fn. omitted.)

The affirmative defenses contained in the Moore’s answer to the FAC consist of the following:

1. Failure to state a cause of action; 2. Negligence of Plaintiff; 3. Negligence of others; 4. Lack of causation; 5. No wrongdoing or wrongful act; 6. Unclean hands; 7. Assumption of risk; 8. Uncertain; 9. Action with reasonable care; 10. Apportionment; 11. Substantial factor; 12. Comparative negligence; 13. Mitigation of damages; 14. Statute of limitations; 15. Speculative damages; 16. Justification; 17. Adverse possession; 18. Consent; 19. Bad faith; 20. Reasonable cause; and 21. Reservation of unstated affirmative defenses.

The answer contains no facts in support of any of the affirmative defenses. For example, for the first affirmative defense, the Moore’s simply set forth the legal conclusion that: “PLAINTIFF is barred from recovery herein by reason of the fact that PLAINTIFF’s pleading, and each and every cause of action thereof, fails to state, and PLAINTIFF cannot prove, facts sufficient to constitute a cause of action as against these answering DEFENDANTS.” The rest of the affirmative defenses follow suit and likewise only contain legal conclusions.

In opposition to the demurrer, the Moore’s first argument is that Plaintiff’s FAC is conclusory and contains contradictory facts that make the answer proper when taking the FAC into account. As an example, the Moore’s claim that the date the fences were alleged to have been built are contradictory in that, among other things, the FAC does not specify if there was a fence in existence in 1968, when Plaintiff acquired her property. The Court is not persuaded by the Moore’s argument. It appears clear from the complaint, as summarized above, that Plaintiff is alleging the building of fences, that are encroaching on her property, in 2022 and 2023. There is no ambiguity or contradiction.

The Moore’s next argument is that they can provide sufficient facts to support each of the affirmative defenses in response to Form Interrogatory 15.1. The argument is irrelevant. Responses to interrogatories are not currently before the Court. What is at issue is whether the Moore’s have adequately pled sufficient facts to support their affirmative defenses. They have not. By way of the response to Plaintiff’s meet and confer letter, and by way of the opposition, the Moore’s do make factual allegations as to some of the affirmative defenses. However, that is insufficient. The factual allegations need to be contained in the answer.

The Moore’s next argument is that at least one of the affirmative defenses is good as against a general demurrer and, therefore, the entire demurrer must be overruled. The Moore’s do not say which affirmative defense is good as against a demurrer. Even if they had, they fail to address the fact that Plaintiff’s demurrer is both a general demurrer and a special demurrer as to each of the affirmative defenses. The special demurrer to each, and every, cause of action is meritorious.

The Moore’s last two arguments in opposition are also completely without merit. The first is that Defendants assert retaliation as an additional affirmative defense. In doing so, they ask the Court to take judicial notice of a judgment entered against Plaintiff and for Defendants in a separate action. For purposes of this demurrer, it is irrelevant what occurred in a separate case unless the answer ties that case to the present action. Here, the answer does not, contrary to the Moore’s claims, allege retaliation as an affirmative defense. Even if it had, the Moore’s did not include any facts to support such an affirmative defense.

The last argument, in opposition, is that Defendants are merely denying Plaintiff’s allegations in the FAC and that the do not need to state any additional facts. The argument is a misstatement of the law. The general denial would not require any additional facts but, pursuant to the authority set forth above, the affirmative defenses do require sufficient ultimate facts to be pled.

Based on the above, the special demurrers to each affirmative defense set forth in the Moore’s answer to the FAC will be sustained. As there is a reasonable likelihood that the Moore’s will be able to amend the answer to allege sufficient facts to support at least some of their affirmative defenses, they will be given leave to amend.

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