Case Name:   MobileFrame, LLC v. Proctor Productions, Inc.

Case No.:       1-13-CV-255909

 

After full consideration of the arguments, authorities, and papers submitted by each party, the court makes the following rulings:

 

Currently before the Court are plaintiff MobileFrame, LLC’s (“MobileFrame”) demurrer to defendant Proctor Productions, Inc.’s (“Proctor”) answer to the first amended complaint (“FAC”), MobileFrame’s motion to strike Proctor’s answer to the FAC, and MobileFrame’s demurrer to Proctor’s cross-complaint.

 

Demurrer to the Answer to the FAC

 

The demurrer to the answer in its entirety on the ground that the answer does not comply with Code of Civil Procedure section 128.7, subdivision (a) is OVERRULED.  Failure to sign a pleading is not a valid ground for demurrer.  (See Code Civ. Proc., §430.20 [there are only three grounds for demurrer to an answer: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; and (3) failure to state whether contract alleged in the answer is written or oral].)

 

The demurrer to the portions of Proctor’s answer that address paragraphs 6, 7, 8, and 9 of the FAC (i.e., Answer, pp. 2:9-11, 2:12-13, 2:14-15, and 2:16-17) is OVERRULED.  The only ground for demurrer listed in MobileFrame’s notice of motion and demurrer, with respect to the portions of Proctor’s answer that are listed above, is that “the Answers to Paragraphs 6, 7, 8, and 9 are defective.”  (Notice of Motion, p. 1:22-24; see also Demurrer, p. 2:2-6.)  Defectiveness is not one of the three grounds for demurrer enumerated in Code of Civil Procedure section 430.20.  (See Code Civ. Proc., §430.20.)  In its memorandum of points and authorities, MobileFrame argues that the portions of the answer that address paragraphs 7, 8, and 9 of the FAC are “defectively uncertain” and the portion of the answer that addresses paragraph 6 of the FAC is “evasive,” but MobileFrame did not list uncertainty as a ground for demurrer in its notice of motion or demurrer and evasiveness is not a valid ground for demurrer.  (See Code Civ. Proc., §430.20; see also Code Civ. Proc., § 430.60 [“A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”].)

 

The demurrer to the first affirmative defense on the ground of failure to state facts sufficient to constitute a defense is OVERRULED.  The failure to state facts sufficient to constitute a cause of action is a challenge to a pleading and the court’s power to grant relief and, therefore, is never waived.  (See Code Civ. Proc. § 430.80, subd. (a); see also Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2013) ¶¶ 7:33 and 7:34, pp. 7(l)-17 and 7-15; see also Henry v. Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1413.)  There are no factual allegations which are necessary to raise the objection and so this first defense appears to be properly pled.  In addition, there does not appear to be any prejudice to MobileFrame in allowing such an objection to be made as an affirmative defense.

 

The demurrer to the second affirmative defense on the ground of failure to state facts sufficient to constitute a defense is SUSTAINED, with 10 day’s leave to amend.  Contrary to Proctor’s assertion in its opposition, the second affirmative defense does not indicate that the privilege of competition is being asserted, but merely alleges that Proctor’s conduct was justified or protected by some unspecified privilege.  (See San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal. App. 4th 29, 42 [“the privilege of competition constitutes a valid affirmative defense to a cause of action for intentional interference with prospective economic advantage”].)  As the FAC does not allege a cause of action for interference with prospective economic advantage, it is not readily apparent, based upon the causes of action alleged, what privilege Proctor is attempting to assert.

 

The demurrer to the third affirmative defense on the ground of failure to state facts sufficient to constitute a defense is OVERRULED.  It appears that MobileFrame seeks evidentiary facts supporting Proctor’s third affirmative defense, but Proctor only needs to plead ultimate facts and it adequately alleges that MobileFrame failed to take reasonable steps to mitigate its damages.  (See Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal. App. 4th 832, 871; see also South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 736.)

 

The demurrer to the fourth and sixth affirmative defenses on the ground of failure to state facts sufficient to constitute a defense is OVERRULED.  While lack of causation and failure of performance are not new matters and are essentially denials, there does not appear to be any prejudice to MobileFrame in allowing such denials as affirmative defenses.  (See Weil & Brown, Cal. Practice Guide:  Civ. Proc. Before Trial (The Rutter Group 2013) ¶¶ 6:440 and 6:444 [failure of conditions such as non-performance or defective performance is not a new matter that is properly alleged as an affirmative defense because the plaintiff bears the burden of pleading and proving performance in a contract action]; see also Eucalyptus Growers Ass’n. v. Orange County Nursery & Land Co. (1917) 174 Cal. 300, 334.)

 

The demurrer to the fifth affirmative defense on the ground of failure to state facts sufficient to constitute a defense is OVERRULED.  The allegation in the fifth affirmative defense that the “breach of contract cause of action fails for failure by [MobileFrame] to deliver to [Proctor] the specified consideration” (Answer, p. 4:7-8) is an assertion of ultimate fact that is sufficient to survive demurrer.  (See First-Trust Joint Stock Land Bank of Chicago v. Meredith (1936) 5 Cal.2d 214, 221 [the defendant not obliged to and did not purport to set forth probative facts that would support her plea]; see also Rusk v. Johnston (1937) 18 Cal.App.2d 408, 409 [language to effect “was executed and delivered without any consideration” was finding of ultimate fact, not conclusion of law].)

 

The demurrer to the seventh affirmative defense on the ground of failure to state facts sufficient to constitute a defense is SUSTAINED, with 10 days’ leave to amend.  Contrary to Proctor’s assertion in its opposition, the seventh affirmative defense does not allege that the contract is void as a result of illegality, but that the contract is void or voidable as a result of MobileFrame’s alleged misrepresentations as to its ability to perform the contract.  (See Answer, p. 4:15-17.)  The seventh affirmative defense does not allege any specific misrepresentation that MobileFrame made, let alone plead facts regarding the circumstances surrounding the alleged misrepresentation.  (See California Trust Co. v. Gustason (1940) 15 Cal. 2d 268, 272 [invalidating circumstances that constitute grounds for avoidance of the contract such as fraud must be pleaded in the answer in the same manner and with the same particularity as if they were asserted in a complaint]; see also Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14 [the pleading must allege facts that show how, when, where, to whom, and by what means the representations were tendered].)

 

Motion to Strike the Answer to the FAC

 

The motion to strike is GRANTED IN PART and DENIED IN PART.

 

The motion is DENIED as to MobileFrame’s request for an order striking the answer in its entirety on the ground that the answer does not comply with Code of Civil Procedure section 128.7, subdivision (a).  MobileFrame does not provide the Court with any evidence to support its position that it was “sewer served” and the answer that was filed with the Court on July 9, 2014, contains a valid proof of service, indicating that MobileFrame was served with the verified answer via U.S. mail on July 9, 2014.  (See Code Civ. Proc., § 1013, subd. (a) [stating the requirements for a valid proof of service]; see also Floyeyor Internat., Ltd. v. Super. Ct. (1997) 59 Cal.App.4th 789, 795 [filing of proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service].)  Moreover, the answer that is filed with the Court on July 9, 2014, is in fact signed by Proctor’s counsel.

 

Additionally, the motion is DENIED as to MobileFrame’s request for an order striking the first through seventh affirmative defenses of the answer.  MobileFrame argues that the Court should strike Proctor’s first through seventh affirmative defenses because they are uncertain and not pled “in conformity with CCP §430.20,” and then proffers the same arguments made in its demurrer with respect to the affirmative defenses.  (Mem. Ps & As., p. 2:6-7.)  The arguments made by MobileFrame are properly raised on demurrer not in a motion to strike and, in fact, MobileFrame asserts the same arguments in its demurrer to the answer.  (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter Group 2013) ¶¶ 7:156 and 7:158.2, p. 7(l)-66.2 and p. 7(l)-66.3 [“Motions to strike can be used to reach defects or objections to pleadings that are not challengeable by demurrer.  . . .  [A] motion to strike generally does not lie against a defect or objection that may be raised by demurrer.”].)

 

The motion to strike is GRANTED, with 10 days’ leave to amend, as to MobileFrame’s request for an order striking portions of the answer addressing paragraphs 6, 7, 8, and 9 of the FAC (i.e., Answer, p. 2:9-11, 2:12-13, 2:14-15, 2:16-17).  (See Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 767 [when the defect that justifies striking a pleading is capable of cure, the court should allow leave to amend].)

 

With respect to the portions of the answer that address paragraphs 7, 8, and 9 of the FAC, the answer does not admit or deny that the portions of the contract quoted in the FAC are correct restatements of the terms of the contract that is alleged in the FAC.  Contrary to Proctor’s assertion, the answer states only that the correct language is stated in the contract and does not state that the FAC fails to allege the correct contract language. (See Answer, p. 2:9-11.)

With respect to the portion of the answer that addresses paragraph 6 of the FAC, the Court can not properly consider MobileFrame’s argument to the extent that it relies on Proctor’s cross-complaint and the attachment thereto because the grounds for the motion to strike must appear on the face of the pleading.  (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2014) ¶7:168, p. 7(I)-66.4 citing Code Civ. Proc., §437.)   Nonetheless, Proctor admits in its answer that “the parties entered into a written contract” (Answer, p. 2:7-8) and whether the document attached to the FAC as exhibit A is in fact the contract that was entered into by the parties is a matter that is within Proctor’s actual knowledge.  (See Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791 [“If a matter is within the defendant’s actual knowledge or by its nature is presumed to be within his knowledge, or if the defendant has the means of ascertaining whether or not it is true, a denial on information and belief or for lack of either will be deemed sham and evasive and may be stricken out or disregarded.”].)

Demurrer to the Cross-Complaint

 

As a preliminary matter, Proctor’s request for judicial notice of its answer to the FAC and its cross-complaint filed on July 9, 2014, is GRANTED.  (See Evid. Code § 452, subd. (d) [a court may take judicial notice of court records that are relevant to a pending issue]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

 

The demurrer to the cross-complaint on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is SUSTAINED, with 10 days’ leave to amend.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [it is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that a plaintiff can state a cause of action].)  While, Proctor is correct that the cross-complaint alleges all of the necessary elements of a claim for breach of contract (see Wall Street Network, Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178 [the elements of a cause of action for breach of contract are: (1) the existence of a contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damage]), it is clear that Proctor has not attached a copy of the alleged contract to the cross-complaint or set forth the terms of the contract verbatim in the body of the complaint as required, given that Proctor has only paraphrased the key terms of the contract.  (See Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 459 citing Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59.)

 

MobileFrame’s request for an order instructing Proctor’s counsel to serve all future pleadings by certified mail with proof of delivery is DENIED as MobileFrame does not cite any legal authority that supports its request.

 

MobileFrame’s request for monetary sanctions pursuant to Code of Civil Procedure section 128.7 is DENIED because it is procedurally defective.  (See Code Civ. Proc., § 128.7, subd. (c)(1) [a request for sanctions under section 128.7 must be made in a motion made separately from other motions or requests and cannot be filed until 21 days after it is served to allow the party against whom sanctions is sought an opportunity to correct the challenged paper].)  In addition, the Court declines to impose sanctions on its own motion as Proctor indicated that it offered to amend its cross-complaint by attaching the alleged contract and the defect can be easily remedied.  (See Code Civ. Proc., § 128.7, subd. (c)(2).)

 

The Court will prepare the order.