Pleading treasure

The law is a haunted house. Haunted by ghosts, by our past.

Sometimes, after hours, after a long day in court with the living, with the voluble and the anxious, I open the old wooden door, and wander about the quiet mansion. I am looking for treasure. The floor boards creak. Sometimes I hear sounds from another room, and I investigate. I wave the dust away, see it swirl in the dull light. My fingers run along old words, doctrines, and names; bits and pieces of bound books, often only the isolated phrase discernable, such as wergild and chose in action -- and some still lit by current use, like cy pres, alter ego and estoppel. There -- a portrait of Blackstone, there of Coke; and there the ferocious Holmes, unmitigated by the veneer of shellac and dust.

And sometimes I see a few odd pieces which lie, uneasily, between use and discard. These are small treasures, which, shined up a bit, might still do us some good.

Here's one, and it's called on information and belief. We see this old phrase every day, so often that we miss its meaning. Like old Latin, we dutifully recite it, ignore it, and pass it by.

But let us examine this old device; and later, one of its cousins -- pleadings in affirmative defenses.

Almost every complaint uses the phrase: on information and belief. It seems like an excuse to allege things the person has no idea are true. An expression of hope; no more. Declarations on information and belief are usually not worth the paper they're written on. They are not evidence, because the phrase means the declarant is ignorant. E.g., Long Beach Unified Sch. Dist. v. Margaret Williams, LLC, 43 Cal. App. 5th 87, 105 n.9 (2019). On information and belief -- defendants conspired to defraud me; on information and belief, the board knew of the malfeasance; on information and belief, the moon is made of green cheese.

Anyone can sue anyone for anything in this country, we say, and point to these sorts of allegations. And when the complaints are challenged by demurrer and motions for judgment on the pleadings, judges say they must accept the allegations as true.

But let us clean off the patina and look closer.

There is nuance here. "Information and belief" is not in fact a passport to invention. The phrase isn't to be read, "information or belief" -- it really is "information and belief" - i.e., belief based on information. There must be facts which justify the belief. It's a statement of inference. The declarant "may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true." Doe v. City of Los Angeles, 42 Cal. 4th 531, 550 (2007) (emphasis added); Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 1158-59 (2011). So under each belief, there are facts.

We know from Gomes (and e.g., People for Ethical Operation of Prosecutors & L. Enf't v. Spitzer, 53 Cal. App. 5th 391, 410 (2020)) that alleging the predicate facts without the ultimate belief isn't good enough. The converse isn't clear, i.e., whether the predicate facts which support the belief, too, must be pleaded. Maybe not, since evidentiary (as opposed to ultimate) facts don't have to be pleaded, and maybe the facts underlying the belief are evidentiary. But there's good authority that the predicate facts really do have to be pleaded. Brown v. USA Taekwondo, 40 Cal. App. 5th 1077, 1106 (2019), aff'd on other grounds, 11 Cal. 5th 204 (2021); Aghaji v. Bank of Am., N.A., 247 Cal. App. 4th 1110, 1120 (2016).

To be sure, inferences are drawn in favor of the pleading party, Bank of New York Mellon v. Citibank, N.A., 8 Cal. App. 5th 935, 952 (2017), but there's a limit: Inferences must be reasonable. How reasonable is the belief that the board knew of the malfeasance? Let's look at the facts -- which may actually have to be pleaded. Indulging the plaintiff, as we do, perhaps the facts are good enough. How reasonable is it to aver the moon is made of green cheese? There won't be pleaded facts to support that one.

(An aside on inferences: If a fact is equally consistent with both an inference and its opposite, the inference isn't valid; it's just speculation. Leslie G. v. Perry & Assocs., 43 Cal. App. 4th 472, 483 (1996). The fact that I have seen green cheese is consistent with the moon's being made of it -- and not. So there's no valid inference.)

Information and belief isn't a magic pass. It has true heft, obscured by long and too-familiar usage. Only reasonable inferences, supported by facts, will do. You can't make it up.

I promised a look at another doctrine, lying dusty on the shelves of this quiet old mansion. This too is a matter of pleading -- of affirmative defenses.

You know the time-worn approach here: List 'em all. Get a summer associate to research every possible defense, scrape them out from the last 10 answers you filed, and toss them all in the soup. After all, failure to plead a defense is a waiver. Quantification Settlement Agreement Cases, 201 Cal. App. 4th 758, 812-13 (2011).

But when we take out our polishing cloth and remove the tarnish from this doctrine, we see much more. The usual affirmative defenses -- those fast one-liners we're so used to -- won't work. Claim barred by laches. Claim barred by estoppel. Barred by waiver. Consent. Unclean hands. Et cetera. These are just legal conclusions; and those don't count. Defenses are "new matter" which means the pleader -- the defendant -- must lavish as much care on them as we expect from plaintiffs drafting the claims. We need pleaded facts, precisely as we need facts from plaintiffs, "facts 'averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.'" Dep't of Fin. v. City of Merced, 33 Cal. App. 5th 286, 294 (2019), quoting Quantification Settlement Agreement Cases.

I must note that you can demur to an answer. My law and motion colleagues will not thank me, and no one really wants more pleading disputes; targeted interrogatories might be a better way to wipe out frivolous defenses -- but a demurrer might be spot on. After the demurrer is sustained, some defenses will reappear in the amended answer, and perhaps some will even be on information and belief. But there better had be pleaded facts for those, too.

We have found treasure: two dusty doctrines, apparently innocuous -- but each enough to win a case. Claims and defenses must be based on facts: nothing could be simpler; or more powerful. 