Case Number: BC680415 Hearing Date: February 08, 2018 Dept: 53

TERRELL OWENS vs. F45 TRAINING INCORPORATED , et al.; BC680415, February 8, 2018

[Tentative] Order RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO THE AFFIRMATIVE DEFENSES CONTAINED IN THE VERIFIED ANSWER TO THE COMPLAINT FILED BY DEFENDANT F45 TRAINING CORPORATED [CCP § 438]

Plaintiff TERRELL OWENS’ Motion for Judgment on the Pleadings is GRANTED.

BACKGROUND

Plaintiff Terrell Owens (“Plaintiff”) filed this action on October 19, 2017 against Defendant F45 Training Incorporated (“Defendant”). Plaintiff’s Complaint alleges causes of action for breach of contract, common law commercial misappropriation of name and likeness, and statutory commercial misappropriation of name and likeness (Civil Code § 3344).

On November 20, 2017, Defendant filed its Verified Answer, alleging nine affirmative defenses.

Plaintiff moves for judgment on the pleadings on the basis that Defendant’s Answer contains no facts sufficient to constitute an affirmative defense. Defendant filed an opposition but concedes all the arguments made by Plaintiff in his motion. Defendant only requests leave to file an amended Answer.

LEGAL STANDARD

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) The motion normally lies only for defects fully disclosed on the face of the pleading under attack or by matters for which judicial notice may be taken. (Code Civ. Proc. §438(d).)

A plaintiff may demur to an answer on the ground of insufficient pleading of defenses. (Code Civ. Proc. § 430.20.) “[T]he 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. A general demurrer raises the objection that the answer does not state facts sufficient to constitute a defense.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 (internal citations omitted).)

As a general rule, defendants must allege facts in support of affirmative defenses. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 (affirmative defenses “proffered in the form of terse legal conclusions, rather than 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’” are not well pled and cannot survive a demurrer).)

DISCUSSION

Plaintiff contends that Defendant’s First (Bad Faith), Sixth (Uncertain), and Ninth (Reservation) Affirmative Defenses are not legally viable, which Defendant does not dispute. Defendant agrees to withdraw the First, Sixth, and Ninth Affirmative Defenses.

Plaintiff also contends that the Second (Consent), Third (Failure to Perform), Fourth (Failure of Consideration), Fifth (Laches), Seventh (Unclean Hands), and Eighth (Unenforceability of Agreement) Affirmative Defenses fail to state facts sufficient to constitute an affirmative defense, which Defendant does not dispute. Defendant agrees to withdraw the Fifth Affirmative Defense for laches and seeks leave to amend the rest.

CONCLUSION

In light of the foregoing, the Court GRANTS Plaintiff’s motion for judgment on the pleadings. Leave to amend is granted only as to the Second, Third, Fourth, Seventh, and Eighth Affirmative Defenses. Defendant is ordered to file an amended Answer within twenty days of this Order.

Plaintiff is ordered to provide notice of this ruling.

DATED: February 8, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court