Judge: Alison Mackenzie, Case: 23SMCV00459, Date: 2023-05-23 Tentative Ruling
Case Number: 23SMCV00459 Hearing Date: May 23, 2023 Dept: 207
Background
Plaintiff Shabtai Alon (“Plaintiff”) brings this action
against Defendant Bristol Farms, Inc. (“Defendant”) alleging he was injured
when he slipped and fell at one of Defendant’s stores. On April 3, 2023,
Defendant filed an Answer generally denying the allegations of Plaintiff’s
Complaint and asserting twenty-six affirmative defenses. Plaintiff now brings
this demurrer to several of those affirmative defenses, arguing they fail to
state facts constituting a defense and are uncertain. Defendant opposes the
demurrer.
Request for Judicial Notice
Plaintiff asks the Court to take judicial notice of
Plaintiff’s Complaint and Defendant’s Answer in this action. (Boris Decl. at
fn.1.) Plaintiff’s request does not comply with the requirements of California
Rules of Court, rule 3.1113(l), which provides “Any request for judicial notice
must be made in a separate document listing the specific items for which notice
is requested and must comply with rule 3.1306(c).” As Plaintiff’s request is
unopposed, the Court in its discretion will grant Plaintiff’s request.
Legal
Standard
A party against whom
an answer has been filed may object by demurrer to the answer. (C.C.P. § 430.20.)
A demurrer is a pleading used to test the legal sufficiency of other pleadings.
It raises issues of law, not fact, regarding the form or content of the opposing
party's pleading (complaint, answer or cross-complaint). (C.C.P. §§ 422.10, 589;
see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer
tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn.
v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is sustained only where the defects
appear on the face of the pleading or are judicially noticeable. (C.C.P. § 430.30.)
No extrinsic evidence may be considered. (See Ion Equip. Corp. v. Nelson
(1980) 110 Cal.App.3d 868, 881.)
The effect of a general
denial in an answer is to put in issue the material allegations of the complaint.
(Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th
621, 627.)
In addition to denials,
the answer should contain whatever affirmative defenses or objections to the complaint
that defendant may have, and that would otherwise not be in issue under a simple
denial. Such defenses or objections are “new matter.” (C.C.P. §431.30(b)(2).) In
general, defendant bears the burden of proving “new matter” and, as such, must be
specifically pleaded in the answer. (California Academy of Sciences v.
County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) The same pleading of “ultimate
facts” rather than evidentiary matter or legal conclusions is required as in pleading
the complaint. The answer must aver facts as carefully and with as much detail as
the facts which constitute the cause of action, and which are alleged in the complaint.
(FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) The
various affirmative defenses must be separately stated and must refer to the causes
of action to which they relate “in a manner by which they may be intelligently distinguished.”
(C.C.P. §431.30(g).) In sum, California is a fact pleading jurisdiction, not a notice
pleading jurisdiction like the federal courts, such that merely putting an opposing
party on notice is not sufficient. (Bach v. County of Butte (1983) 147 Cal.App.3d
554, 561; Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.)
The critical inquiry
when a plaintiff demurs to an answer is whether the answer raises a defense to plaintiff’s
stated cause of action. (Timberidge Enterprises, Inc. v. City of Santa Rosa
(1978) 86 Cal.App.3d 873, 879-880.)
Demurrers to a complaint or an answer generally follow the
same rules; however, there are some important differences. (South Shore Land
Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) First, for a demurrer to an
answer, the defect in question need not appear on the face of the answer. (Ibid.)
“The determination of the sufficiency of the answer requires an examination of the
complaint because its adequacy is with reference to the complaint it purports to
answer. [Citations.] This requirement, however, does not mean that the allegations
of the complaint, if denied, are to be taken as true, the rule being that the demurrer
to the answer admits all issuable facts pleaded therein and eliminates all allegations
of the complaint denied by the answer. [Citations.]” (Ibid.) Second, for
purposes of a demurrer to an answer, each defense in the answer must be considered
separately without regard to any other defense. (Id. at 733-34.) Thus, a
separately stated defense that is sufficient in form and substance when viewed in
isolation does not become insufficient when, on looking at the answer as a whole,
that defense appears inconsistent with other parts of the answer. (Ibid.)
Third, because a defendant is entitled to plead inconsistent defenses, where one
separate answer denies all of the allegations of the plaintiff's complaint, the
plaintiff is not excused from making proof of the material facts because of admissions
of some or all of them found in other and separate answers of the defendant. (Id.
at 734.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be
sustained where the pleading is so unintelligible that a defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even
if the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Analysis
1. Meet and
Confer Requirement
Before filing a
demurrer, the demurring party is required to “meet and confer in person or by
telephone” with the party who filed the pleading demurred to for the purposes
of determining whether an agreement can be reached through a filing of an
amended pleading to resolve the objections to be raised in the demurrer.
(C.C.P. § 430.41(a).) Plaintiff has not satisfied this meet and confer
requirement. The declaration of counsel attached to Plaintiff’s motion indicates
that no telephonic or in-person meet and confer ever occurred and the parties
instead exchanged correspondence. (Boris Decl. at ¶2.) Nonetheless, the Court
will consider the merits of Plaintiff’s demurrer (C.C.P. § 430.41(a)(4)),
however counsel are cautioned that any further failure to comply with these
requirements will result in the motion being taken off calendar.
2. Uncertainty
Code Civ. Proc. § 430.20 provides
three potential grounds for demurrer to an answer: (a) failure to state facts
sufficient to constitute a defense, (b) uncertainty, and (c) where the answer
plead a contract, it cannot be ascertained whether the contract is written or
oral. Plaintiff argues both that the challenged affirmative defenses fail to
state sufficient facts and also are uncertain. However, Plaintiff’s only
argument regarding uncertainty is that the challenged defenses are uncertain
because they do not state sufficient facts to constitute a defense. Plaintiff’s
argument as to uncertainty under Code Civ. Proc. § 430.20(b) is thus entirely
duplicative of its arguments under Code Civ. Proc. § 430.20(a). The Court does
not find the Answer is ambiguous and unintelligible, and thus this basis for
Plaintiff’s demurrer is OVERRULED.
3. Formatting Requirements
Defendant asks the Court to
disregard Plaintiff’s demurrer in its entirety because it fails to comply with
the formatting requirements of California Rules of Court, rule 3.1320(a), which
requires each ground for demurrer be set forth in a separate paragraphs and
state whether it applies to the entire pleading or a specific cause of action
or defense. Defendant is correct that Plaintiff’s demurrer sets forth the two
grounds for its demurrer in a single paragraph, which identifies each
affirmative defense which is being challenged. While such practice does violate
rule 3.1320(a), the Court finds no prejudice or ambiguity has resulted from
Plaintiff’s assertion of both grounds in a single paragraph, and thus declines
to overrule Plaintiff’s demurrer on this basis.
4. Affirmative
Defenses
In ruling on Plaintiff’s demurrer,
it is important to draw a distinction between specific denials of the
allegations of the Complaint and affirmative defenses which are “new matter
constituting a defense” under Code Civ. Proc. § 431.30(b)(2). To constitute new
matter, affirmative defenses must be styled in the fashion of “yes, the
allegations are true, but….” (See FPI Development, Inc., supra,
231 Cal.App.3d at 383; see also Walsh v. West Valley Mission Community
College Dist. (1998) 66 Cal.App.4th 1532, 1546 [“Where, however, the answer
sets forth facts showing some essential allegation of the complaint is not
true, such facts are not ‘new matter,’ but only a [denial]”].) As set forth
above, only such “new matter” must be specifically pleaded in an answer. (California
Academy of Sciences, supra, 192 Cal.App.3d at 1442.)
Defendant’s first affirmative
defense for failure to state a claim does not seek to introduce any new matter
into consideration but merely challenges the sufficiency of Plaintiff’s
pleading. Similarly, Defendant’s second affirmative defense (apportionment of
fault), sixth affirmative defense (intervening and superseding cause), and
eleventh affirmative defense (unavoidable accident) are in essence denials of
Plaintiff’s allegations of causation as pled in the Complaint. The same is true
with regard to Defendant’s twelfth affirmative defense (no injury or damages),
which is a denial of the allegations of damages pled in the Complaint, and the
seventeenth cause of action (no control over premises) which is a denial of the
allegations regarding Defendant’s control of the subject premises. Defendant’s thirteenth
(assumption of risk), eighteenth (injury not reasonably foreseeable), and
nineteenth (no knowledge of susceptible plaintiff) affirmative defenses are
denials of the allegations that Defendant owed Plaintiff a duty of care.
Defendant also correctly cites
Code Civ. Proc. § 458 as obviating any need to plead the twenty-first
affirmative defense (statute of limitations) with factual specificity. Section
458 provides in pertinent part “In pleading the statute of limitations it is
not necessary to state the facts showing the defense, but it may be stated
generally 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) of the Code of Civil
Procedure….” Defendant’s Answer complies with the requirements of section 458
by identifying the specific code provisions which are alleged to bar
Plaintiff’s causes of action.
This leaves Defendant’s seventh
affirmative defense (justification/excuse), twentieth affirmative defense
(offset), and twenty-second affirmative defense (estoppel). The Court finds
each of these affirmative defenses do constitute new matter, as each is styled
in the manner of “yes, the allegations are true, but….” The affirmative defense
of justification/excuse does not dispute the allegations of the Complaint, but
rather asserts that even if those allegations are taken as true, Defendant
cannot be held liable because its actions were justified or excused for some
reason. The Answer does not identify this purported justification or excuse, or
offer any facts showing Defendant’s actions were excused or justified. The
Court thus finds the Answer fails to set forth sufficient facts to assert a
defense based on justification or excuse.
The same result follows with
respect to the affirmative defense of estoppel, which similarly argues that
even if Plaintiff’s allegations are taken as true, his claims are nonetheless
barred. This is “new matter” which must be supported by factual allegations
showing why Plaintiff is estopped from asserting claims against Defendant. Defendant
argues the defense of estoppel is not “new matter” because it “potentially
negate[s] all of Plaintiff’s causes of action.” (Opposition at 7.) This
interpretation would eliminate the distinction between denials and affirmative
defenses altogether, as a defense by definition must necessarily negate a cause
of action. The question is not whether the defense of offset negates a cause of
action, but rather whether that defense goes beyond the denial of the
allegations of the Complaint and raises new issues not raised by the Complaint.
The defense of estoppel does so, and thus must be specifically pled.
Defendant’s twentieth affirmative defense
of offset is similarly “new matter” as it argues that, even if Plaintiff was
damaged as claimed in the Complaint, Defendant was damaged more. This defense
is not supported by any factual allegations showing how Defendant was damaged
or the nature of those damages. “The determination
of the sufficiency of the answer requires an examination of the complaint
because its adequacy is with reference to the complaint it purports to answer.”
(South Shore Land Co., supra, 226 Cal.App.2d at 733.)
Plaintiff’s Complaint here does not offer much by the way of specificity or
factual support with regard to his damages, claiming in general terms that he
was “injured in his health, and activity, sustaining bodily injury.” (Complaint
at ¶13.) However, the Complaint does generally advise Defendant that Plaintiff is
alleging he slipped at the subject property and suffered bodily injury as a
result. The general nature of Defendant’s claimed damages is missing from
Defendant’s Answer.
For these reasons, the Court
SUSTAINS Plaintiff’s demurrer to Defendant’s seventh, twentieth, and
twenty-second affirmative defenses with leave to amend. Plaintiff’s demurrer is
otherwise OVERRULED.
Conclusion
Plaintiff’s demurrer to
Defendant’s seventh, twentieth, and twenty-second affirmative defenses is
SUSTAINED with 30-days’ leave to amend. Plaintiff’s demurrer is otherwise
OVERRULED in its entirety.