Case Name: Molini Hoko v. Conservatorship of Martha Nagy, et al.
Case No.: 17-CV-304942

Currently before the Court is the demurrer by plaintiff Molini Hoko (“Plaintiff”) to the answer of defendant Deborah J. Dolch (“Dolch”), General Conservator of Martha Nagy (“Nagy”).

Factual and Procedural Background

This is an action for breach of contract and negligence. On February 24 and 25, 2011, Dolch, legal counsel for Nagy, and other persons engaged in mediation with the Honorable Catherine Gallagher (ret.) serving as mediator. (FAC, ¶ 6.) Those parties then entered into a settlement agreement. (Id., at ¶ 6.) Plaintiff is not a party to the settlement agreement. (Ibid.) Under the terms of the settlement agreement, Dolch was allegedly required to employ Plaintiff, Nagy’s former caregiver, upon Nagy’s return to Los Altos. (Id., at ¶ 7.) The terms of the settlement agreement cannot be changed absent the consent of all parties to the settlement agreement. (Id., at ¶¶ 11, 17.) Plaintiff alleges that she is an intended third party beneficiary of the settlement agreement and she performed all of her obligations under the settlement agreement. (Id., at ¶¶ 12-15 and 18.)

Thereafter, on March 28, 2011, Plaintiff was hired by HCA to provide care to Nagy. (FAC, ¶¶ 23-25.) In May 2011, the defendants negligently failed to provide Plaintiff with the necessary training for her to perform “her caregiver’s duty to [Nagy].” (Id., at ¶ 26.) The defendants told Plaintiff that she was to work as a house cleaner instead. (Ibid.) In addition, the defendants “were negligent through their conspiracy with Patricia [Nagy’s] niece that resulted in [Plaintiff] being constructively dismissed from service and suspended as care givers for [Nagy] per the requests … given by Patricia that she did not want to see [Plaintiff] … around the house.” (Id., at ¶¶ 27 and 28.) The defendants terminated Plaintiff’s employment on January 9 or 10, 2013, thereby breaching the settlement agreement. (Id., at ¶¶ 19 and 21.) As a result of the termination, Plaintiff sustained damages in the form of lost wages. (Id., at ¶ 21.)

Subsequently, Plaintiff filed a complaint against Dolch, Conservatorship, and HCA on January 9, 2017. On March 10, 2017, Plaintiff filed the operative FAC against Dolch, Conservatorship, and HCA, alleging causes of action for (1) breach of contract and (2) negligence.

Thereafter, Dolch, as conservator, and Conservatorship, filed a demurrer to the FAC. HCA also filed a demurrer to the FAC. The demurrers proceeded to hearing on May 18, 2017. The following day, the court (Hon. Theodore C. Zayner) issued an order striking Conservatorship from the FAC, overruling Dolch’s demurrer to the first cause of action, sustaining with leave to amend Dolch’s demurrer to the second cause of action, and sustaining HCA’s demurrer to the FAC with leave to amend.

On June 5, 2017, Dolch filed an answer to the FAC, generally denying the allegations of the FAC and asserting twenty-six affirmative defenses.

Plaintiff filed the instant demurrer to Dolch’s answer on June 26, 2017. Thereafter, Dolch filed papers in opposition to the demurrer on August 9, 2017.

Discussion

Plaintiff demurs to the first through twenty-sixth affirmative defenses of the answer on the grounds of uncertainty and failure to allege facts sufficient to state a defense. (See Code Civ. Proc., § 430.20, subds. (a) and (b).)

I. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (“South Shore”), internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.)

II. Request for Judicial Notice

Dolch asks the Court to take judicial notice of (1) an amended complaint and court order filed in another case, and (2) the court order on Dolch’s, Conservatorship’s, and HCA’s demurrers to the FAC.

The amended complaint and court order filed in another case are not proper subjects of judicial notice because they are not relevant to a material issue raised by the pending demurrer. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (Lockyer) [“There 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 remaining document—the prior court order on Dolch’s, Conservatorship’s, and HCA’s demurrers to the FAC—is a proper subject of judicial notice because it is a court record relevant to a procedural issue raised by the instant demurrer.

Accordingly, Dolch’s request for judicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to the court order on Dolch’s, Conservatorship’s, and HCA’s demurrers to the FAC. The request is otherwise DENIED.

III. Procedural Issues

Preliminarily, there are two procedural matters that must be addressed. First, Dolch contends that the demurrer is untimely and, therefore, should be stricken. A plaintiff has 10 days after service of an answer to his or her pleading to demur to the answer. (Code Civ. Proc., § 430.40, subd. (b).) If served electronically, the aforementioned response date is increased by an additional two calendar days. (Code Civ. Proc., §§ 1013, subd. (g) and 1010.6, subd. (a)(4)(A).) Here, service of the answer was effectuated on June 5, 2017, via electronic service. Thus, Plaintiff had until June 19, 2017, to file her demurrer. Plaintiff did not file her demurrer until June 26, 2017, and therefore it is untimely. However, the Court not only has the discretion to consider an untimely demurrer, but resolutions on the merits are favored. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280-282; see also Jackson v. Doe (2011) 69 Cal.App.3d 747, 753.) Consequently, the Court will exercise its discretion to overlook this procedural defect.

Second, Plaintiff failed to file a meet and confer declaration as required by Code of Civil Procedure section 430.41. Code of Civil Procedure section 430.41 requires a demurring party to meet and confer with the party who filed the challenged pleading to seek informal resolution of the demurring party’s objections. (Code Civ. Proc., § 430.41, subd. (a).) The meet and confer must be conducted in person or by telephone, and must address each cause of action or defense to be included in the demurrer. (Ibid.) If these efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) While a court may not overrule a demurrer for insufficient meet and confer efforts (see Code Civ. Proc., § 430.41, subd. (a)(4)), it may continue the hearing and order the parties to meet and confer as required (see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2). Here, in furtherance of judicial economy, the Court will overlook Plaintiff’s failure to comply with Code of Civil Procedure section 430.41 in this instance only.
IV. Uncertainty

As stated above, Plaintiff demurs to the first through twenty-sixth affirmative defenses of the answer on the ground of uncertainty.

Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so unintelligible and uncertain the responding party cannot reasonably respond to or recognize the claims against it. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, Plaintiff does not present any argument demonstrating that the subject affirmative defenses are so unintelligible and uncertain that she cannot reasonably respond to or recognize the defenses asserted against her. If fact, Plaintiff recognizes the nature of each and every one of the affirmative defenses alleged against her, and attempts to respond to the merits of those defenses in her demurrer. Thus, it is readily apparent that the affirmative defenses are not truly uncertain.

Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

V. Failure to Allege Facts Sufficient to State a Defense

A. First Affirmative Defense

The first affirmative defense provides that the FAC fails to allege facts sufficient to constitute a cause of action. Plaintiff argues, in a conclusory manner, that the Court should sustain its demurrer to the first affirmative defense because Dolch does not allege facts sufficient to constitute a defense. Plaintiff also asserts that the FAC adequately states a claim.

Dolch’s assertion that the FAC fails to allege sufficient facts to state a claim is not a statement of new matter; rather, it is a challenge to the legal sufficiency of the FAC. (See Code Civ. Proc., § 431.30, subd. (b)(2) [an affirmative defense must include “a statement of any new matter constituting a defense”]; see also Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239 [generally, any issue where the defendant bears the burden of proof at trial is new matter and must be pleaded in the answer].) The objection asserted in the first affirmative defense goes to the Court’s power to grant relief and such an objection is never waived. (See Code Civ. Proc., § 430.80, subd. (a).) Consequently, there does not appear to be any prejudice to Plaintiff in allowing such an objection to be made as an affirmative defense following the Court’s ruling on Dolch’s demurrer.

Thus, the demurrer to the first affirmative defense on the ground of failure to allege facts sufficient to constitute a defense is OVERRULED.

B. Second Affirmative Defense

Plaintiff argues that the second affirmative defense based on the statute of limitations fails because the Court, in ruling on Dolch’s demurrer to the FAC, previously determined that the FAC was not time-barred on its face.

This argument does not demonstrate that Dolch’s defense of statute of limitations fails to allege sufficient facts to constitute a defense. Plaintiff’s argument fails to address the sufficiency of the allegations supporting the statute of limitations defense. The fact that it cannot be said from the face of the FAC that Plaintiff’s remaining claim for breach of contract is time-barred by the applicable statute of limitations does not mean that the statute of limitations defense, as pleaded in the answer, is somehow deficient.

Notably, Code of Civil Procedure section 458 provides that a party need not allege facts supporting a statute of limitations defense, but must state “that the cause of action is barred by the provisions of Section ___ (giving the number of the section and subdivision thereof, if it is so divided, relied upon).” (Code Civ. Proc., § 458; see Brown v. World Church (1969) 272 Cal.App.2d 684, 691; see also Hagely v. Hagely (1886) 68 Cal. 348, 352; Miller v. Lane (1911) 160 Cal. 90, 92 [stating that an allegation of the bar of the statute of limitations in substantially the form prescribed by Code of Civil Procedure section 458 is sufficient for all purposes].) Here, the second affirmative defense alleges that each cause of action of the FAC is barred by Code of Civil Procedure sections 337, 338, 339, 340, 343, and 344. (Answer, p. 2:11-13.) These allegations meet the requirements of Code of Civil Procedure section 458 and, consequently, the second affirmative defense is sufficiently pled.

Thus, the demurrer to the second affirmative defense on the ground of failure to allege facts sufficient to constitute a defense is OVERRULED.

C. Third, Seventh, Tenth, Thirteenth, Sixteenth, and Twenty-First Affirmative Defenses

Plaintiff argues that the third, seventh, tenth, thirteenth, sixteenth, and twenty-first affirmative defenses fail to state sufficient facts to constitute a defense because no facts are alleged supporting those defenses.

The third affirmative defense for failure of conditions precedent, the seventh affirmative defense for lack of standing, the tenth affirmative defense for lack of consideration, the thirteenth affirmative defense for lack of causation, the sixteenth affirmative defense for lack of privity, and twenty-first affirmative defense for lack of damages, in effect, challenge Plaintiff’s ability to prove elements of her breach of contract claim. (See Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178 [the elements of a cause of action for breach of contract are the existence of a contract, the plaintiff’s performance or excuse for nonperformance, the defendant’s breach, and damage to the plaintiff].) Because these defenses are essentially denials of Plaintiff’s remaining claim, there are no additional facts that need to be pleaded. Moreover, there does not appear to be any prejudice to Plaintiff in allowing Dolch’s denials to be pled as affirmative defenses.

Consequently, the demurrer to the third, seventh, tenth, thirteenth, sixteenth, and twenty-first affirmative defenses is OVERRULED.

D. Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, Twelfth, Fourteenth, Fifteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty- Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, and Twenty- Sixth Affirmative Defenses

Plaintiff argues that the Court should sustain its demurrer to the following affirmative defenses because Dolch does not plead facts supporting the defenses: the fourth affirmative defense of waiver; the fifth affirmative defense of material breach; the sixth affirmative defense of estoppel; the eighth affirmative defense of detrimental reliance; the ninth affirmative defense of unclean hands; the eleventh affirmative defense of contract void against public policy; the twelfth affirmative defense of mitigation of damages; the fourteenth affirmative defense of frustration of purpose; the fifteenth affirmative defense of laches; the seventeenth affirmative defense of unjust enrichment; the eighteenth affirmative defense of statute of frauds; the nineteenth affirmative defense of breach of express and implied warranty; the twentieth affirmative defense of parol evidence rule; the twenty-second affirmative defense of privilege; the twenty-third affirmative defense of ratification; the twenty-fourth affirmative defense of consent; the twenty-fifth affirmative defense of improper notice of breach; and the twenty-sixth affirmative defense of prevention of performance.

Dolch does not address these defenses in her opposition papers.

An affirmative defense must include “a statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subd. (b)(2).) Generally, any issue where the defendant bears the burden of proof at trial is new matter and must be pleaded in the answer. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.) Affirmative defenses raised in an answer must be material and supporting facts must be “ ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’ ” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

A review of the challenged affirmative defenses supports Plaintiff’s assertion that Dolch fails to allege any facts to support her affirmative defenses. For example, Dolch alleges in the sixth 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 her breach of contract claim. The other affirmative defenses listed above suffer from similar defects. Consequently, these affirmative defenses do not satisfy the pleading requirement.

Accordingly, the demurrer to the fourth, fifth, sixth, eighth, ninth, eleventh, twelfth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-third, twenty-fourth, twenty-fifth, and twenty-sixth affirmative defenses is SUSTAINED, with 10 days’ leave to amend.