Case Name: Jason & Shanna Pacheco v. Henry & Jasmine Gong
Case No.: 2015-1-CV-277367

This is an action arising from disputes pertaining to a lease agreement and an attendant option to purchase residential property. Currently before the Court is Defendants/Cross-Complainants’ Motion to Strike Plaintiffs Answer to the Third Amended Cross-Complaint (“TACC”) “for failure to obtain leave of court before filing or alternatively for an order sustaining demurrer as to the entire Answer . . . The Answer to TACC is filed without leave of court. The Answer to TACC is a sham pleading because it contradicts the Pachecos’ Complaint and their responses to interrogatories.” (Notice of Motion/Demurrer at 1:28-2:7.) Defendants/Cross-Complainants also state that they are seeking Judgment on the Pleadings as to the operative Complaint because it “is void due to uncertainty of the terms of the alleged April 2014 agreement. The Answer to the TACC makes it clear that the Pachecos’ alleged agreement with the Gongs is uncertain and lacks meeting of the minds.” (Notice of Motion/Demurrer at 3:13-18, internal citation omitted.)

As an initial matter Defendants/Cross-Complainants cannot simultaneously move to strike/demurrer to the contents of the Answer to the TACC and move for judgment on the pleadings as to Plaintiffs’ Complaint based on purported contradictions between the contents of the Answer to the TACC and the contents of the Complaint as a motion for judgment on the pleadings “is equivalent to a belated general demurrer.” (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) Except as provided by statute (CCP §438), the rules governing demurrers apply to such motions. In the context of a demurrer/motion for judgment on the pleadings directed at the Complaint, the Complaint’s factual allegations are assumed to be true and the Answer is extrinsic evidence that cannot be considered. (See Hughes v. Western MacArthur Co. (1987) 192 Cal.App.3d 951, 957 [The standard of review for a judgment on the pleadings is the same as for a judgment following sustaining of a demurrer; courts look only to the face of the pleading under attack. The complaint cannot be attacked by reference to matters set forth in the answer. All facts alleged in the complaint are admitted for purposes of the motion and the court determines whether these facts constitute a cause of action].) Accordingly, assuming for purposes of argument it was proper in the first place for Defendants/Cross-Complainants to make attacks on separate pleadings in a single motion rather than as separately noticed motions, the motion for judgment on the pleadings directed at the Complaint is DENIED.

Because the Court cannot consider any extrinsic evidence in ruling on a motion to strike or a demurrer the Court has not considered the declaration of Defense Counsel Naren Chaganti purporting to authenticate attached exhibits, any of those attached exhibits, or any arguments made that are dependent upon such extrinsic evidence. The Court has also not considered the exhibits attached to Plaintiffs’ opposition or the exhibits attached to Defendants/Cross-Complainants’ Reply. Any purported requests for judicial notice by either side that do not comply with Rule of Court 3.1113(l) and Rule of Court 3.1306(c) are denied. The Court notes that even if requests for judicial notice were properly made, pleadings, moving papers and declarations can only be noticed as to their existence and filing dates, and not as to the truth of their contents.

Motion to Strike Answer
Defendants/Cross-Complainants’ motion to strike the Answer to the TACC on the basis that it was purportedly filed without leave of court is DENIED.

Contrary to Defendants/Cross-Complainants’ argument, CCP §471.5 does not require prior leave of court for the belated filing of an answer to an amended pleading. “[A] defendant may file an answer, even after the time to answer has expired, unless a default has previously been entered.” (Brown v. Ridgeway (1983) 149 Cal.App.3d 732,736.) No default had been entered when Plaintiffs’ Answer to the TACC was filed on February 9, 2017. Defendants/Cross-Complainants have not argued or established that the late filing of the Answer prejudiced them in any way. Nor was the Answer to the TACC itself an amended pleading to which Rule of Court 3.1324 would have any application as Defendants/Cross-Complainants argue; it was Plaintiffs’ first response to an amended pleading, the TACC.

Defendants/Cross-Complainants’ motion to strike the Answer to the TACC on the ground that it is a “sham pleading” is also DENIED.

As an initial matter the sham pleading doctrine only applies to subsequent versions of the same pleading, not different pleadings. “Under the sham-pleading doctrine, admissions in an original complaint that has been superseded by an amended pleading remain within the court’s cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s case will not be accepted.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1043, fn. 25.) Alternatively stated, “plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised on demurrers…” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) “If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.) The sham pleading doctrine is intended to enable courts to prevent an abuse of process. (Deveny, supra, 139 Cal.App.4th at p. 426.)

Defendants/Cross-Complainants cannot establish that Plaintiffs’ Answer to the TACC is a sham pleading based on a comparison with Plaintiffs’ Complaint. The relevant comparison is to the prior versions of Plaintiffs’ Answer to the cross-complaint. These are (according to the Court’s docket) the original Answer to the initial cross-complaint filed May 8, 2015, the amended Answer to the initial cross-complaint filed July 2, 2015 and the Answer to the first amended cross-complaint filed February 5, 2016. None of the prior answers were challenged by Defendants/Cross-Complainants. The only pleading comparison Defendants/Cross-Complainants make in their papers (apart from the irrelevant comparison to the Complaint) is between the Answer to the TACC and the amended Answer to the initial cross-complaint filed July 2, 2015. The most relevant comparison, between the Answer to the TACC and the Answer to the first amended cross-complaint filed February 5, 2016, is not made—the immediate predecessor to the current Answer is not addressed at all.

While Defendants/Cross-Complainants argue that Plaintiffs’ theory of contract has changed between the February 26, 2015 filing of the Complaint and the February 17, 2017 filing of the Answer to the TACC, this does not establish that the current Answer is a sham pleading. The law is clear that the sham pleading doctrine is inapplicable “to alternative or even inconsistent pleading of the legal effect of the same facts.” (Lim v. The TV Corp. Internat. (2002) 99 Cal.App.4th 684, 690.) The sham pleading rule is not applicable where a plaintiff “seeks to change his legal theory of recovery and the legal conclusions he seeks to draw from underlying factual events, and also seeks to omit factual allegations that are irrelevant and immaterial to the new legal theories asserted.” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 949.)

Thus, Defendants/Cross-Complainants have not established that the sham pleading doctrine applies under the circumstances presented.

“Alternative” Demurrer to entire Answer
Defendants/Cross-Complainants’ demurrer to the entire Answer is OVERRULED.

There are only three permissible grounds for a demurrer to an answer under CCP §430.20: 1) Failure to state facts sufficient to constitute a defense; 2) Uncertainty, and; 3) Failure to state whether a contract alleged in the answer is written or oral. As with a demurrer to an entire complaint, a demurer to an entire answer must be overruled if any portion of it is properly stated. (See Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24, 36.)

Defendants/Cross-Complainants’ demurrer to the TACC states that the demurrer is made on four grounds: 1) that the Answer “is filed without leave of court” which is not a valid ground for demurer to an answer; 2) that the Answer “is a sham pleading in that it contradicts the Pachecos’ Complaint and other evidence,” which, even if interpreted as an assertion of failure to state facts sufficient to constitute a defense, has not been established as described above; 3) a request that the court “declare as void and unenforceable the alleged April 2014 agreement because the answer to the TACC shows that there was no meeting of the minds between the Pachecos and the Gongs as alleged in the Complaint by the Pachecos,” which is not a valid ground for demurrer to an answer, and; 4) that the affirmative defenses in the answer “do not state facts to constitute proper defenses to the causes of action in the Cross-Complaint,” which, while a valid ground for demurrer to the Answer, is unsupported by Defendants/Cross-Complainants’ papers as they fail to specifically address any of the 25 affirmative defenses asserted in the Answer.