Case Name: Grellas Shah, LLP v. Linda Pokarney
Case No.: 16-CV-292971

Currently before the Court is the demurrer by plaintiff Grellas Shah, LLP (“Plaintiff”) to the answer of defendant Linda Pokarney (“Defendant”).

Factual and Procedural Background

This is an action for breach of contract. According to the allegations of the underlying complaint, Plaintiff and Defendant entered into a written attorney-client agreement, providing that Plaintiff would provide Defendant with legal representation in connection with “an action against Dan Carpenter, Northwestern Life, and certain officers and directors of Clear View Technologies.” (Complaint, ¶¶BC-1–BC-5, Ex. A.) Plaintiff filed the complaint on March 21, 2016, alleging that Defendant failed to pay outstanding invoices in the amount of $124,477.23 and asserting claims for breach of contract and common counts. (Ibid.)

On May 16, 2016, Defendant filed the answer to the complaint, generally denying each and every allegation of the complaint and asserting several affirmative defenses.

On June 10, 2016, Plaintiff filed the instant demurrer to the answer. Defendant filed papers in opposition to the demurrer on July 7, 2016. Plaintiff filed a reply on July 14, 2016.

Discussion

Plaintiff demurs to the third through tenth affirmative defenses of the answer on the grounds of uncertainty and failure to state sufficient facts to constitute a defense. (See Code Civ. Proc., § 430.20, subds. (a), (b).)

A. Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to the answer because it is a court record that is relevant to material issues raised in the pending matter. (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (“Lockyer”) (2000) 24 Cal.4th 415, 422, fn. 2 [“[t]here is … a precondition to the taking of judicial notice in either its mandatory or permissive form-any matter to be judicially noticed must be relevant to a material issue”].) The request is DENIED as to Plaintiff’s answer to the cross-complaint because it is immaterial whether Plaintiff’s answer suffers from the same defects raised in the instant demurrer. (See Lockyer, supra, 24 Cal.4th at p. 422, fn. 2.)

B. Uncertainty

Plaintiff argues in a conclusory manner that the third through tenth affirmative defenses are uncertain because Defendant fails to set forth facts supporting those affirmative defenses. Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so unintelligible that the responding party cannot reasonably respond. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a [pleading] is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].) Here, the purported ambiguities do not render the affirmative defenses so unintelligible that Plaintiff cannot reasonably respond. Moreover, it is apparent from Plaintiff’s more specific arguments that it understands what each affirmative defense at least attempts to allege and there is no true uncertainty.

Accordingly, the demurrer to the third through tenth affirmative defenses on the ground of uncertainty is OVERRULED.

C. Failure to Allege Facts Sufficient to Constitute a Defense

1. Third through Eighth and Tenth Affirmative Defenses

The third affirmative defense of contributory/comparative negligence, the fourth affirmative defense of failure to mitigate damages, the fifth cause of action of laches, the sixth affirmative defense of unclean hands, the seventh affirmative defense of estoppel, the eighth affirmative defense of set off, and the tenth affirmative defense of waiver/release are pled in a conclusory manner. For example, Defendant alleges in the seventh affirmative defense that Plaintiff is estopped from maintaining this action, without providing any fact-based details supporting the legal conclusion that Plaintiff is estopped from bringing its claims. The other affirmative defenses listed above suffer from similar defects. It is well-established that allegations in an affirmative defense which are proffered “in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the fact[s] which constitute the cause of action and are alleged in the complaint’ ” are insufficient to survive a demurrer. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384; Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-813; South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) Consequently, the affirmative defenses listed above do not satisfy the pleading requirement.

Therefore, the demurrer to the third through eighth and tenth affirmative defenses on the ground of failure to allege facts sufficient to constitute a defense is SUSTAINED, with 10 days’ leave to amend.

2. Ninth Affirmative Defense

The ninth affirmative defense of lack of damages is not a new matter as damages (i.e., the alleged nonpayment of Plaintiff’s invoices) are an element of Plaintiff’s claims for breach of contract and common counts. (See McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1489 [““A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.”]; see also Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [“The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ [Citation.]”].) Thus, this claim is essentially a denial and there does not appear to be any prejudice to Plaintiff in allowing Defendant’s denial to be pled as an affirmative defense.

Accordingly, the demurrer to the ninth cause of action on the ground of failure to allege facts sufficient to constitute a defense is OVERRULED.