Preview
1 GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
2 JOHN H. MOON, State Bar No. 253811
MICHAELIS, MONTANARI & JOHNSON, P.C.
3 4333 Park Terrace Dr. #100
Westlake Village, CA 91361
4 Telephone No.: (818) 865-0444
5 Attorneys for Defendants, STEPHEN MAGEE
and SAC AERO FL YING CLUB, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10
11
BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901
12
TRUJILLO, ) Honorable Nancy Fineman; Dept. 4
) DEFENDANTS' OPPOSITION TO
13
Plaintiffs, ) PLAINTIFFS' DEMURRER TO
) DEFENDANTS' SECOND AMENDED
14 vs. ) ANSWER
) [Filed concurrently with Request for
15 ) Judicial Notice]
STEPHEN MAGEE, SAC AERO FL YING ) Date: April 5, 2022
16
CLUB, INC. and DOES 1 - 50, ) Time: 2:00 p.m.
) Dept.: 4
17
Defendants. ) Complaint filed: April 17, 2018
) Trial Date: TBD
18
19 Defendants STEPHEN MAGEE 811d SAC AERO FL YING CLUB, INC. (collective,
2o "defendants") submit their opposition to plaintiffs BRYANTRUJILLO's and CINDYTRUJILLO's
21 (collectively, "plaintiffs") demurrer to defendants' second amended answer ("pleading"). Plaintiffs
22 have demurred to the fourteenth affirmative defense in defendants' pleading, contending the
23 equitable estoppel defense is unce1iain and lacks sufficient facts to constitute a defense.
24 Defendants' pleading is proper since plaintiffs have sufficient notice of the bases of
25 defendants' defense such that plaintiffs may prepare their case vis-a-vis election of remedies/
26 estoppel. Plaintiffs are also imputed with presumptive knowledge, precluding uncertainty. Plaintiffs
27 dem311d for fact specific pleading violates California rules prohibiting defendants from proving their
28 defense by way of pleading.
-1-
DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
NSWER
1 Accordingly, plaintiffs' demurrer to defendants' pleading should be overruled.
2 MEMORANDUM OF POINTS AND AUTHORITIES
3 I. BACKGROUND AND PROCEDURAL HISTORY
4 Defendru1ts' pleading is appropriate since plaintiffs have sufficient notice of the nature of
5 defendants' election ofremedies/equitable estoppel defense. The California Practice Guide describes
6 the practice of filing a demurrer for an affirmative defense as "rru·e" given obtaining notice through
7 means such as discovery. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL
8 (The Rutter Group 2021) ("Cal. Prac. Guide"), p. 7(1)-19, ~ 7:35.1.) Cal. Prac. Guide further
9 provides even if a pleading is purportedly defective, it will nonetheless be permitted if a plaintiff has
10 sufficient notice to address the defense. (Id. p. 6-145, ~ 6:472, citing Harris v. City ofSanta Monica
11 (2013) 56 Cal.4th 203, 240 ("Harris").)
12 Throughout pre-trial proceedings, plaintiffs made numerous concessions acknowledging they
13 were fully aware of the nature of defendants' defense. For instance, plaintiffs concede defendants'
14 second supplemental briefing contains "detailed/actual argmnents" (emphasis in plaintiffs' second
15 supplemental brief) as to the estoppel defense. In the last hearing, the Court likewise identified its
16 authority to bifurcate the hearing on plaintiffs' pre-trial election of a continuing nuisance remedy
17 based on equitable estoppel principles. This is alone serves as overwhelming evidence of plaintiffs
18 having sufficient notice.
19 Defendants' estoppel defense, among others, was raised in motion in limine proceedings.
20 The central issue pertaining to defendru1ts' motion in limine, No. 4, was whether the nuisru1ce was
21 continuing or perma11ent, as noted in the Court's February 24, 2021 tentative ruling.
22 On or about March 2021, defendants argued the estoppel defense, among others, at the
23 motions in limine hearing. At the hearing, the parties were ordered to submit a first supplemental
24 brief for these issues.
25 On or about April 2021, defendants submitted their first supplemental brief; identifying the
26 bases for asserting the estoppel defense. This was the second time plaintiffs were provided notice.
27 Plaintiffs' first supplemental brief on defendru1ts' motion in limine No. 4 also discussed
28 plaintiffs' "pre-trial election," where plaintiffs' "choice invoke[d] the Election of Remedies
-2-
DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
NSWER
1 Doctrine," which necessarily implies plaintiffs had notice of the basis of defendants' estoppel
2 defense.
3 On September 24, 2021, defendants moved for leave to ai11end defendfil1ts' answerto include
4 the estoppel defense, along with a double recovery affirmative defense. Included in defendants'
5 motion were the bases for the defense; nainely, defendants paying for the abatement costs at
6 plaintiffs' request for plaintiffs' pursuit of continuing nuisance remedies, ainong other things.
7 Plaintiffs did not oppose that motion.
8 On or about December 7, 2021, defendants again argued the basis for the equitable estoppel
9 defense during a hearing on the nuisance matter. As a result of this proceeding, the paiiies were
10 ordered to submit a second supplemental brief. On or about Jaimary 7, 2022, defendants served
11 plaintiffs with defendants' second supplemental brief.
12 ·Plaintiffs' contentions of unce1iainty and lack of sufficient facts are repudiated by their own
13 admissions of having "detailed/actual arguments" (emphasis in plaintiffs' original) by virtue of
14 defendants' second supplemental brief; by admissions made in plaintiffs' supplemental briefs,
15 certifying plaintiffs obtaining sufficient notice; and where plaintiffs are aware of their actions in
16 pursuit of continuing nuisai1ce remedies, which is a basis for defendai1ts' estoppel defense. Service
17 of defendfil1ts' second supplemental brief occurred nearly a week before plaintiffs commenced meet
18 and confer effo1is.
19 In those exchanges, defendants indicated they were ainenable to amending their answer and
20 provided a proposed amendment. (See, Declaration of Michael Smith, Ex. A, Garry Montfil1ari
21 email, dated January 18, 2022: proposed amendment.) Defendants' proposed amendment identified
22 the basis of the estoppel defense; namely, plaintiffs' acts in pursuit of continuing nuisance remedies
23 caused defendants to incur costs of abatement, which acts as an estoppel. (See plaintiffs' demurrer,
24 p. 6:6-9.) In light of the procedural history in this matter, defendfil1ts' proposed amendment was
25 adequate fil1d this matter should have been resolved. Rather, plaintiffs continue to seek evidentiary
26 matters be incorporated into defendants' pleading.
27 II. ARGUMENT
28 Determining the sufficiency of a pleading is a question of law. (Fosler v. Sexton (2021) 61
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DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
NSWER
1 Cal.App.5th998, 1019.) A party is permitted file a demurrer to an answer on one (1) or more of the
2 following grounds:
3 "(a) The answer does not state facts sufficient to constitute a defense.
4 (b) The answer is uncertain. As used in this subdivision, "uncertain"
5 includes ambiguous and unintelligible.
6 ( c) Where the answer pleads a contract, it cannot be ascertained from
7 the answer whetl1er the contract is written or oral."
8 (Cal. Code ofCiv. Proc.§ 430.20(a)-(c).)
9 By statutory mandate, the allegations of a pleading must be liberally constructed with a view
10 to substantial justice between the parties. (Code Civ. Proc. §452.) A demurrer is not the appropriate
11 procedural vehicle to argue the merits.of a defendant's allegations. (Tenet Healthsystem Desert, Inc.
12 v. Blue Cross of California (2016) 245 Cal.App.4th 821, 842.) Demurrers based on uncertainty are
13 disfavored and strictly construed. Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) "The
14 allegations of the pleading demurred to must be regarded as true." (South Shore Land Co. v.
15 Petersen(l964) 226 Cal.App.2d 725, 732.)
16 A. The Defense of Estopped Encompasses the Doctrine of Election of Remedies
17 In Steiner v. Rowley (1950) 35 Cal.2d 713, 720 the California Supreme Court held a positive
18 act would constitute an election of remedies and serve as an estoppel, precluding a plaintiff from
19 pursuing the alternative remedy. Roam v. Koop (1974) 41 Cal.App.3d 1035 confirms that the
20 doctrine of election ofremedies is properly pied as estoppel:
21 "[b ]roadly speaking, election of remedies is the act of choosing
22 between two or more concurrent but inconsistent remedies based
23 upon the same state of facts. Ordinarily a plaintiff need not elect, and
24 cannot be compelled to elect, between inconsistent remedies during
25 the course of trial prior to judgment. However, if a plaintiff has
26 unequivocally and knowledgeably elected to proceed on one of the
27 remedies he is pursuing, he may be barred recourse to the other. It is
28 to such a situation that the doctrine of election of remedies pertains.
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DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
NSWER
1 The doctrine of election of remedies acts as a bar precluding a
2 plaintiff from seeking an inconsistent remedy as the result of his
3 previous conduct or election. In California the doctrine is theorized
4 on the principle of estoppel. 'Whenever a party entitled to eriforce two
5 remedies either institutes an action upon one of such remedies ·or
6 peiforms any act in the pursuit of such remedy, whereby he has
7 gained any advantage over the other party, or he has occasioned the
8 other party any damage, he will be held to have made an election of
9 such remedy, and will not be entitled to pursue any other remedy for
10 the enforcement of his right."'
11 (Id. at 1039-1040 (internal citations omitted, emphasis added).)
12 B. Defendants' Has Pied The Election of Remedies/Estoppel Defense
13 The central issue here is whether the affirmative defense providing plaintiffs sufficient notice
14 to prepare their case as to defendants' estoppel defense. Plaintiffs have adequate notice since they
15 were aware of their own actions (as shown above) i:md since they were informed of defendants' bases
16 for asserting the estoppel defense by virtue of the numerous proceedings plaintiffs participated in and
17 by the briefs filed by both parties in this matter.
18 In California, the pleading requirement does not require alleging every single fact under the
19 sun. A party need only acquaint the opposing party with the nature of the claim or defense. (Doe
20 v. City ofLos Angeles (2007) 42 Cal.4th 531, 550.) This is because the purpose of a pleading is to
21 give notice. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 816; accord,
22 Schmidlin v. City ofPalo Alto (2007) 157 Cal.App.4th 728, 764; see also, Leet v. Union Pac. R. Co.
23 (1944) 25 Cal.2d 605, 619 ("[t]he essence of the matter is fairness in pleading to give the [party]
24 such notice by the [pleading] that he may prepare his case").)
25 Plaintiffs implicitly concede this by citing FP I Development, Inc. vs. Al Nakashima (1991)
26 231Cal.App.3d367 ("FPI Development"), where the appellate court inFPI Development explained,
27 "[i]n this circumstance it would be unfair to ground a ruling on the inadequacy of the pleadings if
28 the pleadings, read in the light of the facts adduced in the summary judgment proceeding, give notice
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DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEfENDANTS' SECOND AMENDED
NSWER
1 to the plaintiffs ofa potentially meritorious defense." (Id. at 385, emphasis in the original.)
2 As the California Supreme Court recognized inBuxbom v. Smith (1944) 23 Cal.2d 535, 542,
3 "no error or defect in a pleading is to be regarded unless it affects substantial rights." This was
4 echoed in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 ("Harris"). Our high comi
5 confirmed, "[t]he primary function of a pleading is to give the other paiiy notice so that itmay
6 prepare its.case (citation), and a defect in a pleading that otherwise properly notifies a party cannot
7 be said to affect substantial rights." (Id. at 240, emphasis added.) Harris is dispositive as to
8 defendants' pleading since Cal. Prac. Guide cites it under "Section C." for answers, where it will
9 be permitted if sufficient notice is provided for a plaintiff to prepare a case. (See, Cal. Prac. Guide,
10 p. 6-145, ~ 6:472.)
11 Here, plaintiffs' substantial rights are not affected since they have more than sufficient notice
12 of the basis of defendants' defense, Plaintiffs were (and are) fully aware of the underlying factual
13 allegations constituting defendants' estoppel defense, which they concede in both of their
14 supplemental briefs. Admitting having such notice cures any purported pleading defect, which
15 makes defendants' pleading appropriate. (Harris, supra, 56 Cal.4th at 240.) The procedural posture
1'6 of this case -- where numerous hearings took place and two (2) supplemental briefs were served on
17 plaintiffs -- further establishes facts tantamount to those adduced in a swnmary judgment proceeding,
18 which gives plaintiffs sufficient notice of defendants' meritorious defense. (FPI Development,
19 supra, 231 Cal.App.3d at 385.)
20 In addition to the verbal notice given at any of the number of hearings over the course of
21 2021, plaintiffs were also served with written notice by way of defendants' supplemental briefs.
22 Both briefs were properly served on plaintiffs, where the first supplemental brief establishes
23 sufficient notice. (RJN, Ex. 3.) Plaintiffs were served yet again with another supplemental brief,
24 adding to the sufficient notice they already had.
25 Plaintiffs also admitted in their first supplemental brief having notice since plaintiffs discuss
26 their "pre-trial election," which plaintiffs concede "invoked the Election of Remedies Doctrine."
27 (IUN, Ex. 4 - Plaintiffs' first supplemental brief, pp. 3:17; 7:21-22.) Plaintiffs' contention of the
28 Election of Remedies Doctrine being invoked necessarily implicates the principle of estoppel,
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DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
NSWER
1 showing plaintiffs have sufficient notice of the nature of defendants' defense.
2 Defendants' second brief is fmiher substa11tial evidence of sufficient notice since plaintiffs
3 make ajudicial admission of having the basis for defendm1ts' estoppel defense. (See, R.JN, Ex. 2,
4 p. 2: 16-18 (defendm1ts present "detailed/actual m·guments") (emphasis in the original), p. 7: 18-20
5 (defenda11ts "devote" a substantial portion of the brief to the estoppel issue).) This demonstrates
6 plaintiffs' contentions are without merit and. there m·e insufficient grotmds to sustain plaintiffs'
7 demurrer.
8 c. Plaintiffs Are Imputed With Presumptive Knowledge, Which Precludes
9 Uncertainty
10 Sustaining a demurrer based on tmcertainty requires substantial ambiguity such that a party
11 cmmotreasonablyrespond. (A.J. FistesCorp. v.GDLBestcontractors, Inc. (2019) 38 Cal.App.5th
12 677, 695 ("A.J. Fistes Corp.").) For this reason, "demurrers for uncertainty will almost certainly be
13 overruled where" facts are presumptively within the knowledge of the demurring party or
14 ascertainable by invoking discovery procedures. (Cal. Prac. Guide, p. 7(1)-41, 'if 7:86 (emphasis
15 added), citing Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; and A.J. Fistes Corp., supra, 38
16 Cal.App.5th at 695.)
17 Here, plaintiffs are attributed with knowledge of their own actions, including their calculated
18 acts ofinvolving defendants in plaintiffs' pursuit of abatement. (Defendants' Request for Judicial
19 Notice ("RJN"), Ex. 1, p. 2.) Plaintiff Cindy Trujillo testified seeking abatement was plaintiffs'
20 highest priority and their decision to do so was uninfluenced by any oversight agency. (Declaration
21 of Garry Montm1ari, Ex. A- Deposition of Cindy Trujillo, pp. 43: 14-17, 75: 1-9.) Plaintiffs concede
22 knowledge of these critical facts, such as plaintiffs' request to defendm1ts of seeking abatement of
23 plaintiffs' property and defendants paying for abatement costs. (RJN, Ex. 2, p. 4:19-21.) Having
24 such adequate notice necessarily means plaintiffs cm1 reasonably response a11d prepare for
25 defendants' estoppel defense, removing any uncertainty.
26 D. Defendants Agreed to Amend the Affirmative Defense in the Meet and Confer
27 Process
28 Although defendants' pleading is proper, defendm1ts agreed to mnend their a11swer and
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DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
· NSWER
1 provided a proposed amendment. Defendants' proposed amendment indicated plaintiffs were barred
2 by estoppel due to their acts in pursuit of a continuing nuisance remedy where defendants incurred
3 abatement costs.
4 Notwithstanding, plaintiffs contend inordinate particularity is.required even though
5 evidentiary matters have no place in pleadings. (4 Witkin, Cal. Proc. (6th ed. 2021) Pleading, § 406.)
6 Defendants' proposed amendment was more than sufficient since ultimate facts, rather than
7 evidentiary matters, were pied. (See, Cal. Prac. Guide, p. 6-141, ~ 6:459.) Notwithstanding,
8 plaintiffs refused the proposed amendment thereby necessitating this motion.
9 III. LEA VE TO AMEND IS LIBERALLY GRANTED
10 In the event the Court finds sufficient grounds to sustain plaintiffs' demurrer (which the
11 overwhelming evidence does not support), defendants should be permitted leave to amend. The rule
12 is to liberally permit amendment. (Stevens v. Sup. Ct. (AP! Ins. Services, Inc.) (1999) 75
13 Cal.App.4th 594, 601.) It is an abuse of discretion for the court to deny leave ifthere is a reasonable
14 possibility that the defect can be cured. (Bounds v. Sup. Ct. (KMA Group) (2014) 229 Cal.App.4th
15 468, 484.)
16 Here, the issue is whether defendants' facts are sufficient to constitute a defense and whether
17 uncertainty may be clarified. As conceded by plaintiffs, detailed factual arguments were presented
18 in defendants' brief, which shows that any purpmied defect can be cured.
19 Accordingly, if plaintiffs' demurrer is sustained, defendants should be permitted leave to
20 amend.
21 IV. CONCLUSION
22 Based on the foregoing, the Cami is respectfully requested to overrule plaintiffs' demurrer.
23 DATED: March 29, 2022 MICHAELIS, MONTANARI & JOHNSON
24
25 By:
26
SAC AERO
27
28 N:\17517\pld\p~opp.pltf.demurrer.wpd
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DEPENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
. NSWER
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
) S .S.
3 COUNTY OF LOS ANGELES )
4 I am employed in the County of Los Angeles, State of California. I am over the age of I 8
and not a party to the within action; my business address is 4333 Park Terrace Dr. # 100, Westlake
5 Village, California 9 136 1.
6 On March 29 , 2022, I served the foregoing document described as DEFENDANTS'
OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED
7 ANSWER on the interested parties in this action by placing a true copy thereof in a sealed envelope
with postage thereon fully prepaid in the Un ited States mail at Westlake Village, California,
8 addressed as fo llows:
9 Michael S. Danko, Esq. Attorneys for Plaintiffs
Michael Smith, Esq.
10 Danko Meredith
333 Twin Dolphin Dr. # 145
11 Redwood Shores, CA 94065
tel: (650) 453 -3600; fax : (650) 394-86 72
12 Email: mdanko@danko law.com; msmi th@dankolaw.com
13 [X] (MAIL) I deposited such envelope addressed in the mail at Westlake V illage, California.
The envelope was mailed with postage thereon fully prepaid. I am " readily familiar" with firm ' s
14 practice of collection and processing correspondence for mailing. It is deposited with U.S. postal
service on that same day in the ord inary course of business. I am aware that on motion of party
15 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1
day after date of deposit for mai ling in affidavit.
16
17 [X] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to
be sent to the recipient noted above via electronic transfer (email) at the respective email addresses
18 indicated above because of the COVID- 19 virus.
19 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office
located at Westlake Village, California. The envelope was mailed fully prepaid. I am "readily
20 familiar" with firm ' s practice of collection and processing correspondence for mail ing with Federal
Express. It is depo sited with the Westlake Village Federal Express service on that same day in the
21 ordinary course of business. I am aware that on motion of party served, service is presumed invalid
if cancellation date is more than l day after date of deposit fo r overn ight mailing in affidavit.
22
23 I declare under penalty of pe1jury under the laws of the State of Cal ifornia that the foregoing
is true and correct.
24
25 Executed on March 29, 2022 at Westlake V i \l ~lifornia . ~
26
-
cJJc:e~.
Barbara Haussma m , CCLS
~
Preview
1 GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 2 JOHN H. MOON, State Bar No. 253811 MICHAELIS, MONTANARI & JOHNSON, P.C. 3 4333 Park Terrace Dr. #100 Westlake Village, CA 91361 4 Telephone No.: (818) 865-0444 5 Attorneys for Defendants, STEPHEN MAGEE and SAC AERO FL YING CLUB, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901 12 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4 ) DEFENDANTS' OPPOSITION TO 13 Plaintiffs, ) PLAINTIFFS' DEMURRER TO ) DEFENDANTS' SECOND AMENDED 14 vs. ) ANSWER ) [Filed concurrently with Request for 15 ) Judicial Notice] STEPHEN MAGEE, SAC AERO FL YING ) Date: April 5, 2022 16 CLUB, INC. and DOES 1 - 50, ) Time: 2:00 p.m. ) Dept.: 4 17 Defendants. ) Complaint filed: April 17, 2018 ) Trial Date: TBD 18 19 Defendants STEPHEN MAGEE 811d SAC AERO FL YING CLUB, INC. (collective, 2o "defendants") submit their opposition to plaintiffs BRYANTRUJILLO's and CINDYTRUJILLO's 21 (collectively, "plaintiffs") demurrer to defendants' second amended answer ("pleading"). Plaintiffs 22 have demurred to the fourteenth affirmative defense in defendants' pleading, contending the 23 equitable estoppel defense is unce1iain and lacks sufficient facts to constitute a defense. 24 Defendants' pleading is proper since plaintiffs have sufficient notice of the bases of 25 defendants' defense such that plaintiffs may prepare their case vis-a-vis election of remedies/ 26 estoppel. Plaintiffs are also imputed with presumptive knowledge, precluding uncertainty. Plaintiffs 27 dem311d for fact specific pleading violates California rules prohibiting defendants from proving their 28 defense by way of pleading. -1- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED NSWER 1 Accordingly, plaintiffs' demurrer to defendants' pleading should be overruled. 2 MEMORANDUM OF POINTS AND AUTHORITIES 3 I. BACKGROUND AND PROCEDURAL HISTORY 4 Defendru1ts' pleading is appropriate since plaintiffs have sufficient notice of the nature of 5 defendants' election ofremedies/equitable estoppel defense. The California Practice Guide describes 6 the practice of filing a demurrer for an affirmative defense as "rru·e" given obtaining notice through 7 means such as discovery. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL 8 (The Rutter Group 2021) ("Cal. Prac. Guide"), p. 7(1)-19, ~ 7:35.1.) Cal. Prac. Guide further 9 provides even if a pleading is purportedly defective, it will nonetheless be permitted if a plaintiff has 10 sufficient notice to address the defense. (Id. p. 6-145, ~ 6:472, citing Harris v. City ofSanta Monica 11 (2013) 56 Cal.4th 203, 240 ("Harris").) 12 Throughout pre-trial proceedings, plaintiffs made numerous concessions acknowledging they 13 were fully aware of the nature of defendants' defense. For instance, plaintiffs concede defendants' 14 second supplemental briefing contains "detailed/actual argmnents" (emphasis in plaintiffs' second 15 supplemental brief) as to the estoppel defense. In the last hearing, the Court likewise identified its 16 authority to bifurcate the hearing on plaintiffs' pre-trial election of a continuing nuisance remedy 17 based on equitable estoppel principles. This is alone serves as overwhelming evidence of plaintiffs 18 having sufficient notice. 19 Defendants' estoppel defense, among others, was raised in motion in limine proceedings. 20 The central issue pertaining to defendru1ts' motion in limine, No. 4, was whether the nuisru1ce was 21 continuing or perma11ent, as noted in the Court's February 24, 2021 tentative ruling. 22 On or about March 2021, defendants argued the estoppel defense, among others, at the 23 motions in limine hearing. At the hearing, the parties were ordered to submit a first supplemental 24 brief for these issues. 25 On or about April 2021, defendants submitted their first supplemental brief; identifying the 26 bases for asserting the estoppel defense. This was the second time plaintiffs were provided notice. 27 Plaintiffs' first supplemental brief on defendru1ts' motion in limine No. 4 also discussed 28 plaintiffs' "pre-trial election," where plaintiffs' "choice invoke[d] the Election of Remedies -2- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED NSWER 1 Doctrine," which necessarily implies plaintiffs had notice of the basis of defendants' estoppel 2 defense. 3 On September 24, 2021, defendants moved for leave to ai11end defendfil1ts' answerto include 4 the estoppel defense, along with a double recovery affirmative defense. Included in defendants' 5 motion were the bases for the defense; nainely, defendants paying for the abatement costs at 6 plaintiffs' request for plaintiffs' pursuit of continuing nuisance remedies, ainong other things. 7 Plaintiffs did not oppose that motion. 8 On or about December 7, 2021, defendants again argued the basis for the equitable estoppel 9 defense during a hearing on the nuisance matter. As a result of this proceeding, the paiiies were 10 ordered to submit a second supplemental brief. On or about Jaimary 7, 2022, defendants served 11 plaintiffs with defendants' second supplemental brief. 12 ·Plaintiffs' contentions of unce1iainty and lack of sufficient facts are repudiated by their own 13 admissions of having "detailed/actual arguments" (emphasis in plaintiffs' original) by virtue of 14 defendants' second supplemental brief; by admissions made in plaintiffs' supplemental briefs, 15 certifying plaintiffs obtaining sufficient notice; and where plaintiffs are aware of their actions in 16 pursuit of continuing nuisai1ce remedies, which is a basis for defendai1ts' estoppel defense. Service 17 of defendfil1ts' second supplemental brief occurred nearly a week before plaintiffs commenced meet 18 and confer effo1is. 19 In those exchanges, defendants indicated they were ainenable to amending their answer and 20 provided a proposed amendment. (See, Declaration of Michael Smith, Ex. A, Garry Montfil1ari 21 email, dated January 18, 2022: proposed amendment.) Defendants' proposed amendment identified 22 the basis of the estoppel defense; namely, plaintiffs' acts in pursuit of continuing nuisance remedies 23 caused defendants to incur costs of abatement, which acts as an estoppel. (See plaintiffs' demurrer, 24 p. 6:6-9.) In light of the procedural history in this matter, defendfil1ts' proposed amendment was 25 adequate fil1d this matter should have been resolved. Rather, plaintiffs continue to seek evidentiary 26 matters be incorporated into defendants' pleading. 27 II. ARGUMENT 28 Determining the sufficiency of a pleading is a question of law. (Fosler v. Sexton (2021) 61 -3- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED NSWER 1 Cal.App.5th998, 1019.) A party is permitted file a demurrer to an answer on one (1) or more of the 2 following grounds: 3 "(a) The answer does not state facts sufficient to constitute a defense. 4 (b) The answer is uncertain. As used in this subdivision, "uncertain" 5 includes ambiguous and unintelligible. 6 ( c) Where the answer pleads a contract, it cannot be ascertained from 7 the answer whetl1er the contract is written or oral." 8 (Cal. Code ofCiv. Proc.§ 430.20(a)-(c).) 9 By statutory mandate, the allegations of a pleading must be liberally constructed with a view 10 to substantial justice between the parties. (Code Civ. Proc. §452.) A demurrer is not the appropriate 11 procedural vehicle to argue the merits.of a defendant's allegations. (Tenet Healthsystem Desert, Inc. 12 v. Blue Cross of California (2016) 245 Cal.App.4th 821, 842.) Demurrers based on uncertainty are 13 disfavored and strictly construed. Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) "The 14 allegations of the pleading demurred to must be regarded as true." (South Shore Land Co. v. 15 Petersen(l964) 226 Cal.App.2d 725, 732.) 16 A. The Defense of Estopped Encompasses the Doctrine of Election of Remedies 17 In Steiner v. Rowley (1950) 35 Cal.2d 713, 720 the California Supreme Court held a positive 18 act would constitute an election of remedies and serve as an estoppel, precluding a plaintiff from 19 pursuing the alternative remedy. Roam v. Koop (1974) 41 Cal.App.3d 1035 confirms that the 20 doctrine of election ofremedies is properly pied as estoppel: 21 "[b ]roadly speaking, election of remedies is the act of choosing 22 between two or more concurrent but inconsistent remedies based 23 upon the same state of facts. Ordinarily a plaintiff need not elect, and 24 cannot be compelled to elect, between inconsistent remedies during 25 the course of trial prior to judgment. However, if a plaintiff has 26 unequivocally and knowledgeably elected to proceed on one of the 27 remedies he is pursuing, he may be barred recourse to the other. It is 28 to such a situation that the doctrine of election of remedies pertains. -4- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED NSWER 1 The doctrine of election of remedies acts as a bar precluding a 2 plaintiff from seeking an inconsistent remedy as the result of his 3 previous conduct or election. In California the doctrine is theorized 4 on the principle of estoppel. 'Whenever a party entitled to eriforce two 5 remedies either institutes an action upon one of such remedies ·or 6 peiforms any act in the pursuit of such remedy, whereby he has 7 gained any advantage over the other party, or he has occasioned the 8 other party any damage, he will be held to have made an election of 9 such remedy, and will not be entitled to pursue any other remedy for 10 the enforcement of his right."' 11 (Id. at 1039-1040 (internal citations omitted, emphasis added).) 12 B. Defendants' Has Pied The Election of Remedies/Estoppel Defense 13 The central issue here is whether the affirmative defense providing plaintiffs sufficient notice 14 to prepare their case as to defendants' estoppel defense. Plaintiffs have adequate notice since they 15 were aware of their own actions (as shown above) i:md since they were informed of defendants' bases 16 for asserting the estoppel defense by virtue of the numerous proceedings plaintiffs participated in and 17 by the briefs filed by both parties in this matter. 18 In California, the pleading requirement does not require alleging every single fact under the 19 sun. A party need only acquaint the opposing party with the nature of the claim or defense. (Doe 20 v. City ofLos Angeles (2007) 42 Cal.4th 531, 550.) This is because the purpose of a pleading is to 21 give notice. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 816; accord, 22 Schmidlin v. City ofPalo Alto (2007) 157 Cal.App.4th 728, 764; see also, Leet v. Union Pac. R. Co. 23 (1944) 25 Cal.2d 605, 619 ("[t]he essence of the matter is fairness in pleading to give the [party] 24 such notice by the [pleading] that he may prepare his case").) 25 Plaintiffs implicitly concede this by citing FP I Development, Inc. vs. Al Nakashima (1991) 26 231Cal.App.3d367 ("FPI Development"), where the appellate court inFPI Development explained, 27 "[i]n this circumstance it would be unfair to ground a ruling on the inadequacy of the pleadings if 28 the pleadings, read in the light of the facts adduced in the summary judgment proceeding, give notice -5- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEfENDANTS' SECOND AMENDED NSWER 1 to the plaintiffs ofa potentially meritorious defense." (Id. at 385, emphasis in the original.) 2 As the California Supreme Court recognized inBuxbom v. Smith (1944) 23 Cal.2d 535, 542, 3 "no error or defect in a pleading is to be regarded unless it affects substantial rights." This was 4 echoed in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 ("Harris"). Our high comi 5 confirmed, "[t]he primary function of a pleading is to give the other paiiy notice so that itmay 6 prepare its.case (citation), and a defect in a pleading that otherwise properly notifies a party cannot 7 be said to affect substantial rights." (Id. at 240, emphasis added.) Harris is dispositive as to 8 defendants' pleading since Cal. Prac. Guide cites it under "Section C." for answers, where it will 9 be permitted if sufficient notice is provided for a plaintiff to prepare a case. (See, Cal. Prac. Guide, 10 p. 6-145, ~ 6:472.) 11 Here, plaintiffs' substantial rights are not affected since they have more than sufficient notice 12 of the basis of defendants' defense, Plaintiffs were (and are) fully aware of the underlying factual 13 allegations constituting defendants' estoppel defense, which they concede in both of their 14 supplemental briefs. Admitting having such notice cures any purported pleading defect, which 15 makes defendants' pleading appropriate. (Harris, supra, 56 Cal.4th at 240.) The procedural posture 1'6 of this case -- where numerous hearings took place and two (2) supplemental briefs were served on 17 plaintiffs -- further establishes facts tantamount to those adduced in a swnmary judgment proceeding, 18 which gives plaintiffs sufficient notice of defendants' meritorious defense. (FPI Development, 19 supra, 231 Cal.App.3d at 385.) 20 In addition to the verbal notice given at any of the number of hearings over the course of 21 2021, plaintiffs were also served with written notice by way of defendants' supplemental briefs. 22 Both briefs were properly served on plaintiffs, where the first supplemental brief establishes 23 sufficient notice. (RJN, Ex. 3.) Plaintiffs were served yet again with another supplemental brief, 24 adding to the sufficient notice they already had. 25 Plaintiffs also admitted in their first supplemental brief having notice since plaintiffs discuss 26 their "pre-trial election," which plaintiffs concede "invoked the Election of Remedies Doctrine." 27 (IUN, Ex. 4 - Plaintiffs' first supplemental brief, pp. 3:17; 7:21-22.) Plaintiffs' contention of the 28 Election of Remedies Doctrine being invoked necessarily implicates the principle of estoppel, -6- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED NSWER 1 showing plaintiffs have sufficient notice of the nature of defendants' defense. 2 Defendants' second brief is fmiher substa11tial evidence of sufficient notice since plaintiffs 3 make ajudicial admission of having the basis for defendm1ts' estoppel defense. (See, R.JN, Ex. 2, 4 p. 2: 16-18 (defendm1ts present "detailed/actual m·guments") (emphasis in the original), p. 7: 18-20 5 (defenda11ts "devote" a substantial portion of the brief to the estoppel issue).) This demonstrates 6 plaintiffs' contentions are without merit and. there m·e insufficient grotmds to sustain plaintiffs' 7 demurrer. 8 c. Plaintiffs Are Imputed With Presumptive Knowledge, Which Precludes 9 Uncertainty 10 Sustaining a demurrer based on tmcertainty requires substantial ambiguity such that a party 11 cmmotreasonablyrespond. (A.J. FistesCorp. v.GDLBestcontractors, Inc. (2019) 38 Cal.App.5th 12 677, 695 ("A.J. Fistes Corp.").) For this reason, "demurrers for uncertainty will almost certainly be 13 overruled where" facts are presumptively within the knowledge of the demurring party or 14 ascertainable by invoking discovery procedures. (Cal. Prac. Guide, p. 7(1)-41, 'if 7:86 (emphasis 15 added), citing Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; and A.J. Fistes Corp., supra, 38 16 Cal.App.5th at 695.) 17 Here, plaintiffs are attributed with knowledge of their own actions, including their calculated 18 acts ofinvolving defendants in plaintiffs' pursuit of abatement. (Defendants' Request for Judicial 19 Notice ("RJN"), Ex. 1, p. 2.) Plaintiff Cindy Trujillo testified seeking abatement was plaintiffs' 20 highest priority and their decision to do so was uninfluenced by any oversight agency. (Declaration 21 of Garry Montm1ari, Ex. A- Deposition of Cindy Trujillo, pp. 43: 14-17, 75: 1-9.) Plaintiffs concede 22 knowledge of these critical facts, such as plaintiffs' request to defendm1ts of seeking abatement of 23 plaintiffs' property and defendants paying for abatement costs. (RJN, Ex. 2, p. 4:19-21.) Having 24 such adequate notice necessarily means plaintiffs cm1 reasonably response a11d prepare for 25 defendants' estoppel defense, removing any uncertainty. 26 D. Defendants Agreed to Amend the Affirmative Defense in the Meet and Confer 27 Process 28 Although defendants' pleading is proper, defendm1ts agreed to mnend their a11swer and -7- DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED · NSWER 1 provided a proposed amendment. Defendants' proposed amendment indicated plaintiffs were barred 2 by estoppel due to their acts in pursuit of a continuing nuisance remedy where defendants incurred 3 abatement costs. 4 Notwithstanding, plaintiffs contend inordinate particularity is.required even though 5 evidentiary matters have no place in pleadings. (4 Witkin, Cal. Proc. (6th ed. 2021) Pleading, § 406.) 6 Defendants' proposed amendment was more than sufficient since ultimate facts, rather than 7 evidentiary matters, were pied. (See, Cal. Prac. Guide, p. 6-141, ~ 6:459.) Notwithstanding, 8 plaintiffs refused the proposed amendment thereby necessitating this motion. 9 III. LEA VE TO AMEND IS LIBERALLY GRANTED 10 In the event the Court finds sufficient grounds to sustain plaintiffs' demurrer (which the 11 overwhelming evidence does not support), defendants should be permitted leave to amend. The rule 12 is to liberally permit amendment. (Stevens v. Sup. Ct. (AP! Ins. Services, Inc.) (1999) 75 13 Cal.App.4th 594, 601.) It is an abuse of discretion for the court to deny leave ifthere is a reasonable 14 possibility that the defect can be cured. (Bounds v. Sup. Ct. (KMA Group) (2014) 229 Cal.App.4th 15 468, 484.) 16 Here, the issue is whether defendants' facts are sufficient to constitute a defense and whether 17 uncertainty may be clarified. As conceded by plaintiffs, detailed factual arguments were presented 18 in defendants' brief, which shows that any purpmied defect can be cured. 19 Accordingly, if plaintiffs' demurrer is sustained, defendants should be permitted leave to 20 amend. 21 IV. CONCLUSION 22 Based on the foregoing, the Cami is respectfully requested to overrule plaintiffs' demurrer. 23 DATED: March 29, 2022 MICHAELIS, MONTANARI & JOHNSON 24 25 By: 26 SAC AERO 27 28 N:\17517\pld\p~opp.pltf.demurrer.wpd -8- DEPENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED . NSWER 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) ) S .S. 3 COUNTY OF LOS ANGELES ) 4 I am employed in the County of Los Angeles, State of California. I am over the age of I 8 and not a party to the within action; my business address is 4333 Park Terrace Dr. # 100, Westlake 5 Village, California 9 136 1. 6 On March 29 , 2022, I served the foregoing document described as DEFENDANTS' OPPOSITION TO PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED 7 ANSWER on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the Un ited States mail at Westlake Village, California, 8 addressed as fo llows: 9 Michael S. Danko, Esq. Attorneys for Plaintiffs Michael Smith, Esq. 10 Danko Meredith 333 Twin Dolphin Dr. # 145 11 Redwood Shores, CA 94065 tel: (650) 453 -3600; fax : (650) 394-86 72 12 Email: mdanko@danko law.com; msmi th@dankolaw.com 13 [X] (MAIL) I deposited such envelope addressed in the mail at Westlake V illage, California. The envelope was mailed with postage thereon fully prepaid. I am " readily familiar" with firm ' s 14 practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ord inary course of business. I am aware that on motion of party 15 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mai ling in affidavit. 16 17 [X] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to be sent to the recipient noted above via electronic transfer (email) at the respective email addresses 18 indicated above because of the COVID- 19 virus. 19 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office located at Westlake Village, California. The envelope was mailed fully prepaid. I am "readily 20 familiar" with firm ' s practice of collection and processing correspondence for mail ing with Federal Express. It is depo sited with the Westlake Village Federal Express service on that same day in the 21 ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than l day after date of deposit fo r overn ight mailing in affidavit. 22 23 I declare under penalty of pe1jury under the laws of the State of Cal ifornia that the foregoing is true and correct. 24 25 Executed on March 29, 2022 at Westlake V i \l ~lifornia . ~ 26 - cJJc:e~. Barbara Haussma m , CCLS ~